Government Relaxes In-Person Work Eligibility Verification Rules for Now

As employers have started working remotely due to COVID-19, the government recently relaxed an in-person contact requirement to verify an employee’s work eligibility.

As discussed in our earlier update, the guidance interpreting completion of Form I-9 previously required employers or their authorized representatives to “physically examine, with the employee being physically present, each document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it.”

According to the new guidance released March 20, the government will “exercise discretion” with respect to the physical presence requirements associated with completing Form I-9. This flexibility only applies to employers taking physical-proximity precautions due to COVID-19, i.e., those working remotely. No exceptions or flexibility apply to employers with physically present employees.

Although remote employers may not be required to review the worker’s identity and employment authorization in his/her physical presence, they must still inspect the documents remotely (such as via video link, fax, or email) and retain copies of the documents within three days. Notably, remote employers who are taking advantage of this flexible approach to document inspection must create remote onboarding and telework policies and provide employees notice of these policies.

Once normal operations resume, the employee (whose information was not reviewed physically) must report to the employer within three business days for an in-person verification of eligibility documents. The employer should write “COVID-19” as the reason for the physical inspection delay and “documents physically examined,” along with the date of inspection, in the Section 2 additional information field or in Section 3, if appropriate.

Employers may implement these provisions for a 60-day period (beginning March 20 and ending May 19) or within three business days after the National Emergency ends, whichever comes first. However, employers should monitor DHS and ICE websites for updates to these provisions.

E-Verify also announced the following temporary policies:

• Employers must use the hire date on the employee’s Form I-9 when creating an E-Verify case. If creation of a case in E-Verify is delayed because of COVID-19, employers must select “Other” and indicate “COVID-19” as the specific reason.
• Employers cannot take any adverse action against an employee because of an EVerify case being in interim or extended interim case status.

The requirement that employers create E-Verify cases for new hires within three business days from the date of hire remains in place.

The Phelps Labor and Employment team continues to monitor responses to COVID-19. Please contact us if you have any questions or need advice on coronavirus-related issues.