NOTE: An update to the I-9 instructions was released by DHS on March 20. Updated information is available in our March 20 post.
While perhaps not top of mind when considering the many challenges that Coronavirus/COVID-19 poses to employers, immigration compliance is still required. Read the following advisory to prevent immigration law violations that may become apparent when the dust settles.
The requirement to complete an I-9 for new hires and reverify existing employees whose work authorization is expiring continue to be in effect even if employees are working remotely.
Employers may appoint an agent - which can be any person - to act on their behalf for this purpose.
The employee should print the I-9 (paper version - the fillable version is not recommended for many reasons) and complete Section 1 on or before the first day of employment for pay.
The employer should appoint an agent in writing if possible (for example by sending an email). The agent may then review original documents in the physical presence of the employee and complete Section 2. She should sign as “agent” and fill in all fields.
Section 2 of the I-9 must be completed within three business days of employment of pay (or on the first day of employment if employment will last less than three days). Days the business is closed are not considered “business days” for this purpose. Both Section 1 and Section 2 may be completed before the first day of work for pay so long as the job has been offered and accepted.
The original I-9 should be sent to the employer by the agent in a sealed envelope. If health concerns are present, such as the quarantine of an employee, a health expert should be consulted regarding how the original document should be handled. Davis Brown health lawyers can assist in this regard.
Keep in mind that most I-9s contain personally identifiable information (PII) and must be handled accordingly by the agent. Best practice is to store it immediately in a sealed envelope.
If possible, a scan of the I-9 should be sent to the employer to assure that it was done correctly and completely. The scan does not substitute for the original I-9 and should be kept only as a placeholder and used to instruct on error correction.
Special care should be taken to instruct agents who are not familiar with the I-9 process, such as family members or health care providers. We can assist in this process as needed.
If the employer uses an electronic I-9 system, paper I-9s may be used and retained in compliance with the regulations. If the employer chooses to upload the I-9 to the electronic system later, best practice is to keep the paper version as well. We recommend consulting with an attorney about how best to manage this scenario.
If the employer normally copies documents presented in the I-9 process, the agent should copy documents reviewed and send them with the I-9. If this is not possible, we suggest the agent write a note in the Section 2 box to explain why copies could not be obtained. Other alternatives may be possible, such as copying documents later. We advise caution in this approach and can advise based on the circumstances.
If appointing an agent is impossible, the next best option is to complete the I-9 late. The government has informally indicated that leniency will be exercised if it is clear the delay was based on Coronavirus/COVID-19 concerns. It is critical that an explanation to this effect be placed in Section 2 in the box provided or otherwise attached to the I-9 to document this scenario.
We also recommend adding a memo to the file to explain any special circumstances surrounding I-9s completed or updated during a remote work arrangement or other suspension of normal operations due to the Coronavirus/COVID-19. Attaching government advisories or other third-party confirmation of the situation is helpful. The existence of this memo should be flagged so that it can be accessed in the event of an audit many years hence. We would be happy to assist.
If the remote worksite is in a state that mandates E-Verify, employers may be required to enroll the work site in E-Verify to comply. Please contact an attorney if assistance is needed.
If E-Verify must be completed late because the I-9 is completed late, use the drop-down menu to explain the reason for the delay.
H-1B approvals are specific to the location(s) specified in the petition. If employees begin working remotely, we must assess the compliance steps required.
If the remote location is within normal commuting distance of the approved location, compliance can be achieved by posting a notice at the remote site. If the site is the employee’s home, posting may not be required but is an easy step to take to document compliance.
If the remote location is outside normal commuting distance (but still in the U.S.), an H-1B amendment may be needed. However, temporary placement rules could apply to avoid an amendment depending on the duration of remote employment. Please contact an attorney to assess remote work arrangements for H-1B workers in the United States.
Work outside the U.S. is not subject to U.S. immigration law. It may be subject to the immigration law of the remote work country if the employee is not a national or citizen of that country. Other laws may apply to remote employers depending on the law of the country in which the work is performed. We can assist in confirming these requirements through our international contacts.
To prevent any claim of “benching” (unlawful failure to pay the required H-1B wage), employers should have clear and consistent policies in place regarding sick leave and personal time off, such as to care for a sick relative. Any reduction in wage must be assessed to confirm that it meets H-1B wage obligations. Davis Brown employment lawyers can assist in developing or reviewing such policies.
Ongoing registration process
The H-1B registration process is done online and may be submitted through 11:00 a.m. Central time on March 20. We are working on the registrations as quickly as possible. We recommend each employer has a backup for the authorized signatory registered. Please contact your H-1B attorney for assistance in registering a backup.
Other temporary visas
Whether amendment to other temporary work status is required for remote employment depends on the facts and circumstance. We can assist in making this determination.
Filing for immigration benefits
Because of our extensive and first-hand experience with team members working remotely, we are well-positioned to continue our service if remote work is required.
Some immigration forms may be submitted with photocopied signatures. USCIS has been approached regarding suspending original signature rules to allow photocopies on other forms. We are watching for any such guidance.
As mentioned above, the H-1B registration process happens online and we are working on registrations as quickly as possible.
USCIS has advised that persons who are sick should not appear for interviews or biometrics. We can assist in rescheduling these appointments. We would not be surprised if interviews are delayed or rescheduled as USCIS officers could also be affected.
In the good news category, many Service Center employees already work remotely, meaning that those adjudications are less likely to be interrupted.
Customs and Border Protection’s National Targeting Center (NTC) is screening passenger manifests for people who they have reason to believe have been in China or Iran in the last 14 days. Because people are traveling to third countries to stay for the 14-day suspension period, it is difficult for the NTC to determine the facts. They are erring on the side of safety by prohibiting boarding for persons who are suspected of not fulfilling the 14-day period outside of China or Iran.
If you have fulfilled the suspension period in a third country and are being refused boarding, the first step is to bring evidence of your stay, such as receipts for hotels, purchases or other documents. The second step is to ask the airline to contact the Regional Carrier Liaison Group and present the documents to the NTC for consideration.
If these steps do not work, contact your lawyer. Note that the NTC has sometimes instructed the airline not to tell passengers why they are being refused boarding. You must take the initiative to prove your compliance with the 14-day period.
We are here to help you!
We can help with:
- I-9 - reviewing your process and providing guidance
- H1-B and temporary visas - determining remote work requirements
- H1-B registration
- NTC passenger screening
- Rescheduling USCIS interviews
We continue to answer questions about the impact of Coronavirus/COVID-19 and encourage employers to review these resources. Please let us know if we can assist you.
Davis Brown Law Firm blogs, legal updates, and other content are for educational and informational purposes only. This is not legal advice and it does not create an attorney/client relationship between Davis Brown and readers. Each circumstance is different; readers should consult an attorney to understand how this content relates to their personal situation. You should not use Davis Brown blogs or content as a substitute for legal advice from a licensed attorney in your state. Reproduction of Davis Brown content without written consent is prohibited.