Some Employers Receive Temporary Reprieve from I-9 “Physical Presence” Requirements

March 22, 2020 by Margaret Mead

You have a new employee starting work, but your workplace is now a remote environment due to COVID-19 precautions. Most of your personnel forms can be filled out and remotely accepted, but what about the I-9 form, which requires physical examination in the employee’s physical presence?

On Friday, the Department of Homeland Security Announced that employers who are operating with employees working remotely can temporarily avoid this requirement. The catch is that employers must not have any employees working in their business locations, otherwise, they cannot take advantage of the temporary exception. (This is because you can appoint any employee to examine the documents).

If you have no employees at your office, you must still inspect the Section 2 documents over video conference, fax, or e-mail, and obtain and retain copies of the documents within three business days. Employers are instructed to enter “COVID-19” as the reason for the physical inspection delay in the additional information field in Section 2.

Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of their identity and employment eligibility documentation. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field. It’s essential that the employer doesn’t miss this final step.

In sum, only an employer operating completely remotely may take advantage of this temporary avoidance of the “in-person” requirement. If personnel are physically present at the business location, the employer will be ineligible.

This exception is effective March 20 until May 19, 2020.

Margaret Mead

margaret@brownfoxlaw.com

Margaret Mead is a board-certified labor and employment attorney, with over two decades of experience. As a fierce litigator, she has represented clients in Texas State and federal courts and before state and federal agencies (EEOC, TWC, Department of Labor). Originally from Kansas and a KU Alumni, Ms. Mead is a Jayhawks basketball enthusiast. She enjoys attending local musical and dance performances. She also enjoys travel and scuba-diving.

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