All Employers Must Use Revised I-9 Form by April 30, 2020

All employers should take note that United States Citizenship & Immigration Services has issued an updated Form I-9, with an edition date of “10/21/2019.” The use of the new form went into effect on January 31, 2020, and all employers are encouraged to immediately begin using the updated version, which will be mandatory on April 30, 2020, even if the employer is temporarily operating remotely due to the COVID-19 pandemic.

Due to the current National Emergency, the United States Department of Homeland Security has issued temporary modifications to the I-9 document verification process.  Employers that are currently operating remotely may inspect the Form I-9 Section 2 documents “remotely” at the time of completion.  All documents verified remotely at this time must be inspected and retained in person within three days after normal business practices resume.  Documents may be “remotely” inspected by reviewing documents “over video link, fax, or email, etc.”  This modification will remain in place until the earlier of May 20, 2020, or three business days after the National Emergency has ended.

This modification is limited to employers who are conducting operations remotely.  If there are employees physically present at the workplace, then there are no exceptions to the traditional I-9 document verification requirements.  If an employer is eligible to inspect the documents remotely, the following requirements apply:

  1. Provide “written documentation of their remote onboarding and telework policy for each employee.”
  2. Provide notice to employees that “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 the documents.
  3. After physical inspection of the documents, employers must add “COVID-19” as the reason for the inspection delay and “documents physically examined” with the date of inspection to the Section 2 additional information field.

Procedures for new hires who are subject to COVID-19 quarantine or lockdown protocols will be examined by DHS on a case-by-case basis.

You may click here to view the full DHS guidance.

As for the new Form I-9 in general, the updated form includes only minor revisions and clarifications to the instructions.  The substantive revisions to the form include (1) adding Form FS-240 (Consular Report of Birth Abroad) to List C; (2) renumbering of List C due to combining existing documents into one category of birth certificates; and (3) changes to the electronic version of the form to add additional countries to the “Country of Issuance” and “Issuing Authority” fields.

As a best practice, employers should verify that they are using the new Form I-9 at this time by checking the edition date and carefully review the requirements for remote verification if they have transferred to remote operations at this time.

For more information about the updated Form I-9 and any other employment concerns, contact Marissa Lilja or any member of the employment group.

This information has been prepared by Tydings for informational purposes only and does not constitute legal advice.