The following post contains a breaking update on remote I-9 completion from the Department of Homeland Security, breaking updates from U.S. Department of Labor, as well as new immigration-related considerations that have arisen in addressing the COVID-19/coronavirus pandemic.
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.
The Department of Homeland Security (DHS) announced on March 20, 2020 that they will allow remote inspection of documents for those employers and worksites with remote operations due to COVID-19/coronavirus containment protocols. Here are the important take-aways:
- Applies only to employers “operating remotely” because of COVID-19
- Employees must still complete Section 1 on or before the first day of employment
- Employers must review documents within three business days via video link, fax or email
- Employment must obtain, inspect and retain copies of the documents reviewed remotely even if copies are not normally maintained
- Employers should enter “COVID-19” as the reason for the physical inspection delay in the box provided in Section 2.
- Employers should keep written documentation of their remote work policy for each employee for later inspection.
- Once physical inspection is possible, employers must physically inspect the documents in the presence of the person presenting them (this may be done through an agent under the normal rules) within three business days.
- Once physical inspection has been made, employers should add “Documents physically examined” and the date of that inspection (the “in-person completion date”) to the box in Section 2.
- This procedure is available for 60 days or within three business days after the termination of the National Emergency, whichever comes first.
- If these procedures are followed, the “in-person completion date” is the starting point for determining timely compliance for the employees covered by the guidance.
If inspection of documents has been delayed because of a remote work protocol and the unavailability of an agent (see below), we advise that the above guidance be followed and in addition a note made in the Section 2 box that the late completion was due to your COVID-19 policies and the lack of guidance until March 20. It is important to comply with the guidance as soon as possible if this is the case. Documentation of those policies, including the date they went into effect, should be maintained as well.
As an alternative to using this guidance, 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.
We 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.
Suspension of I-9 Audits
DHS also announced that effective March 19, 2020, employers who received a Notice of Inspection (NOI) during the month of March 2020 and have not responded will be granted an automatic 60-day extension per Department of Homeland Security guidance.
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.
The U.S. Department of Labor announced March 20, 2020 that employers may still be considered to have posted timely if the posting is made as soon as practical or within 30 days after the worker begins work at the new location.
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. Reduction to part-time would not be possible without an amendment. Davis Brown employment lawyers can assist in developing or reviewing such policies.
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.
All in-person interviews and biometrics have been canceled by USCIS.
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, Iran, the Schengen area of Europe, UK or Ireland 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 the affected countries.
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.
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