Questions and Answers Related to COVID-19
The Q&A below relate to the March 20, 2020, DHS Immigration and Customs Enforcement (ICE) announcement concerning flexibility in requirements related to Form I-9, Employment Eligibility Verification, compliance for employers and employees taking physical proximity precautions due to COVID-19.
These temporary flexibilities will end on July 31, 2023.
Form I-9 Requirements Questions and Answers
Yes, here is an overview:
- The employee completes Section 1 no later than the first day of employment.
There is no change to current requirements for completing Section 1.
- The employer completes Section 2 within three business days of their employee’s first day of employment.
There is no change to current requirements for completing Section 2 for employees who are physically present at a company location.
Employers and workplaces that are operating remotely may follow the DHS news release that announced flexibility in requirements related to Form I-9.
If employers are performing inspections remotely (e.g., over video link, fax or email, etc.), they must obtain, inspect, and retain copies of the Section 2 documents within three business day of hire. In the Additional Information field, employers should indicate “documents physically examined” and the date of inspection. A physical inspection must take place within 30 days after the flexibilities end on July 31, 2023. Employers should enter “COVID-19,” the date of the physical inspection, and who conducted it in the Additional Information field. For more information, please see Form I-9 mockups for visual examples of how remote and physical inspection should be notated.
As a reminder, the employer may designate an authorized representative to complete Section 2 or 3 of Form I-9 on behalf of the company, including personnel officers, foremen, agents or notary public. The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. If an authorized representative completes Form I-9 on behalf of the employer, the employer is still liable for any violations in connection with the form or the verification process.
- The employer physically examines their employee’s documents with their employee present.
DHS has announced changes to these procedures in certain circumstances; see the news release that announced flexibility in complying with requirements related to Form I-9.
- The employer completes Section 3, Reverification.
DHS has announced changes to these procedures; the ability to inspect documents remotely for some employers applies to reverification as well. See the March 20 news release for details on remote inspection.
If you are updating Section 3, write “COVID-19” in the margin or annotate in the additional information field.
There is no change to current requirements for employees physically present at a work location.
NOTE: If you previously wrote “COVID-19 EXT” in the margin or in the Additional Information field on a Form I-9 when completing Section 3, you do not need to correct this notation.
If the employee presents acceptable documents for in-person inspection that are different from the ones they presented for remote inspection, then the employer may either:
- Complete Section 2 on a new Form I-9 and attach it to the Form I-9 used for remote inspection; or
- Provide the document title, document number, issuing authority, and expiration date (if any) of the new document in the Additional Information field and notate that the employee presented this document at physical inspection.
(As a best practice, DHS recommends option 1.)
As long as the employee’s document was unexpired at the time of remote inspection, the employer should not request a new document and can proceed with the physical inspection consistent with DHS guidance.
Yes, ICE has announced that employers have until August 30, 2023, to complete any remaining physical inspections for those employees who were hired on or after March 20, 2020, and for whom the employer has, to date, only conducted a remote inspection consistent with the flexibilities first announced in March 2020. This allows employers additional time after the temporary flexibilities end on July 31, 2023 to complete in-person physical document inspections for these employees.
ICE announced in October 2022 that the COVID-19 flexibilities would end on July 31, 2023, and reminded employers that they would, in the future, be required to inspect documents in person for employees whose documents were previously examined remotely. Employers have been able to, and continue to be able to, physically examine documents for these employees since the flexibilities were announced in March 2020. Employers must physically examine documents for those employees who were hired on or after March 20, 2020, and for whom the employer has, to date, only conducted a remote inspection consistent with the flexibilities first announced in March 2020. Employers will have 30 days after the end date of the flexibilities on July 31, 2023 – that is, until August 30, 2023.
Yes. Employers must physically examine documents for those employees who were hired on or after March 20, 2020, and for whom the employer has to date only conducted a remote inspection consistent with the flexibilities first announced in March 2020. Employers will have 30 days after the end date of the flexibilities on July 31, 2023 – that is, until August 30, 2023 – to complete in-person physical inspection.
Yes. Employers may choose to use an authorized representative to fill out their portion of the Form I-9 on their behalf. Authorized representatives may also complete the in-person inspection as needed.
USCIS has several examples online at https://www.uscis.gov/i-9-central/form-i-9-examples-related-to-temporary-covid-19-policies. Click on Figure 2 to see an example of how to document this on the Form I-9.
E-Verify Questions and Answers
Due to COVID-19, employers and workplaces that are operating remotely have the option, on a temporary basis, to inspect Form I-9 documents remotely. Employers who choose the remote inspection option may inspect Section 2 documents over video link, fax, email, etc. Within three business days of the first day of employment, employers should obtain, remotely inspect, and retain copies of the identity and employment eligibility documents their employees provide to complete Section 2.
After they inspect the employee’s documents remotely and determine whether the documents reasonably appear to be genuine and relate to the employee, E-Verify participants should create an E-Verify case for the employee. They should still follow current guidance and create the E-Verify case for their new hire within three business days from the first day of employment. Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the reason for the delay.
Employers must physically examine documents for those employees who were hired on or after March 20, 2020, and for whom the employer has, to date, only conducted a remote inspection consistent with the flexibilities first announced in March 2020. Employers will have 30 days after the end date of the flexibilities on July 31, 2023 – that is, until August 30, 2023 – to complete in-person physical inspection. Employers should not create a new E-Verify case for this employee, nor should they update the existing E-Verify case, in connection with this physical inspection.