Here's a recent legal development that an on-the-ball HR practitioner might have understandably missed, given the current National Emergency caused by the COVID-19 pandemic.
Because of the pandemic, the Department of Homeland Security issued guidance about Form I-9 compliance. Employers operating remotely with no employees physically present at a work location are getting a temporary break on the physical presence requirement for verifying employees' documents. Also, DHS will evaluate compliance on a case-by-case basis when new hires or existing employees are subject to quarantine or lockdown. Here's the crux of the guidance:
Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. 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 on the Form I-9, or to section 3 as appropriate. These provisions may be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first.
Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.
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 identity and employment eligibility documentation for Form I-9...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 on the Form I-9, or to section 3 as appropriate.
A news release with the guidance can be found here: https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance.
As HR practitioners know, the physical presence requirement can be a challenge. It makes fully-automated Form I-9 processing impossible, despite the many recent HR Tech advancements.
The physical presence requirement isn't going away. But DHS is taking a temporary step that should facilitate hiring in this difficult time.
Update: DHS has extended this compliance flexibility policy until March 31, 2021. However, no additional extensions are being granted to employers served notices of inspection (NOIs) by Immigration and Customs Enforcement (ICE) during March 2020. ICE's news release about March 2020 NOIs can be found here: https://www.ice.gov/news/releases/ice-announces-another-extension-i-9-compliance-flexibility-no-more-extensions.