While USCIS has closed some offices as a result of COVID-19 contagion, U.S. employers must still ... [+]
Update: This post was initially revised on March 20, 2020, to reflect the Department of Homeland Security's announcement regarding flexibility in requirements related to Form I-9 compliance for employers whose entire workforce is remote, and further revised to reflect the extension of this guidance by Immigration and Customs Enforcement.
As COVID-19 has been declared a pandemic, employers in the United States must find ways to adapt to a rapidly changing situation to keep their workforces safe. For many employers, the directive to their workforce is straightforward – stay at home. But while many functions can be completed via telework, a critical task that all employers must comply with when on-boarding new employees is completing Form I-9.
Congressional Mandate
With a recognition that ample employment opportunities are available in the U.S. and those opportunities may attract illegal immigration to the country, Congress requires all employers to verify the identity and employment authorization of all new workers since 1986. Only citizens of the U.S., lawful permanent residents, nationals, and certain other individuals generally holding specific visa types are permitted to work in the country, and Form I-9 facilitates this authorization.
The U.S. Citizenship and Immigration Services (USCIS) oversees the country’s immigration system and is generally focused on administrative matters concerning citizenship. Immigration and Customs Enforcement (ICE) is responsible for enforcement authority over laws and regulations concerning immigration. USCIS issues Form I-9, while ICE investigates compliance with its requirements.
Form I-9 Requirements
Form I-9 includes three Sections. Only Sections 1 and 2 must be completed for new hires, while all three sections are required to re-verify employment authorization for certain employees.
- Section 1
The employee must complete Section 1 of Form I-9 after an offer of employment or at or the time of hire. Section 1 requires that the employee provide their name, date of birth, Social Security Number, and contact information and attest their right to work in the U.S.
- Section 2
Employers or their authorized representatives must complete Section 2 of Form I-9 within three days of the employee's first day of employment. When completing Section 2, an employer or their representative must inspect specific original documents that affirm the employee's identity and employment authorization. The documents should be reasonably authenticated and representative of the new hire. The individual who reviews the employee's documentation must be the same individual who signs Section 2.
- Section 3
Section 3 of Form I-9 is required when an employment authorization document has expired for a current employee, or an employee is rehired within three years, or to record changes of name or other personally identifiable information. Section 3 may only be completed if the Form I-9 completed initially is the same version as the current I-9 in use. Like Section 2, an employer or their authorized representative completes and signs Section 3.
Of note, USCIS recently issued a new Form I-9, which must be used by all employers as of May 1, 2020.
Social Distancing and Form I-9
Employers have a legal duty to their workers to provide a safe and healthful workplace. With the Centers for Disease Control recommending social distancing, a practice whereby unaffiliated parties remain separated, and many employers, including the USCIS itself, are advising employees to work remotely, completing Sections 2 and 3 of Form I-9 presents a challenge.
Both Sections 2 and 3 of Form I-9 have historically required that the employee physically present their employment authorization documents to the employer or their authorized representative who must personally inspect the documents to assess if they are reasonably genuine and relate to the new hire. Under typical circumstances, USCIS requires an in-person physical inspection of the materials so that an employer can ensure that the documents are not forged and do belong to the new hire. But these are unusual times.
Completing Form I-9 for Employers with Closed Offices
New guidance provided by the Department of Homeland Security (DHS) permits employers whose entire workforce in the U.S. is operating remotely to virtually obtain and inspect a new hire’s employment authorization documents. Previously, those documents would have been physically inspected in person. Virtual inspection includes review via video call, web-based video conferencing, fax, and email. Employment authorization documents must be virtually obtained and inspected within three days of the new hire’s first date of employment.
Employers may virtually inspect a new hire’s employment authorization documents (EAD) only if:
1. They have adopted a policy instructing all workers to work remotely such that no worker is available to physically inspect the EAD.
2. The work remote policy subject to the COVID-19 pandemic is documented and provided to DHS (Note – DHS has not specified how or when this documentation should be provided).
3. Employers conducting a virtual inspection note “COVID-19” in the “Additional Information Field” on Sections 2 or 3 of Form I-9 “once physical inspection takes place after normal operations.”
4. An in-person physical inspection of the EAD is conducted within three days after the end of the COVID-19 national emergency.
5. The “Additional Information Field” on Sections 2 or 3 of Form I-9 must be annotated with “documents physically examined” with the date of inspection once the employee has physically presented their employment authorization documents, and those documents have been inspected in-person.
DHS will honor the virtual inspection process until July 19, 2020, or until three days after the COVID-19 national emergency declaration has been lifted.
Remote Verification and Form I-9 for Employers with Open Offices
Employers that have not implemented fully remote workforces are not eligible to utilize virtual inspections. However, an employer is permitted to designate third parties as authorized representatives to physically inspect the new hire’s employment authorization documents and complete Form I-9. The USCIS permits an employer to identify "any person" as its authorized representative; no agreement is required. And those authorized representatives can lawfully carry out the employer’s obligations to authenticate the documents provided by the employee.
Some states are not as generous as the USCIS and place some restrictions on the types of third-parties that may act as the employer’s authorized representative. For example, in California, only state-licensed public notaries as bonded immigration specialists may complete Form I-9 on behalf of the employer.
For employers in most states, this means an employer could feasibly designate a member of the new hire’s household to witness and complete Form I-9. But doing so comes with significant risk.
Penalties
Employers must be aware that they are "…liable for any violations in connection with [Form I-9] or the verification process, including any violation of the employer sanctions laws committed by the person designated to act on [their] behalf.” Meaning that employers are held accountable for mistakes and errors made by their authorized representatives. And in recent years, ICE has ramped up its investigations and enforcement actions.
While ICE permits employers to correct minor technical or procedural violations if those violations go uncorrected or are numerous, employers may be subject to civil fines, criminal penalties debarment from government contracts, and specific court orders. Monetary penalties range from $573 to $20,130 per violation for knowingly hiring and continuing to employ unauthorized individuals to $230 to $2,292 per violation for technical or substantive issues, including failing to produce a Form I-9.
Reducing Risk from Remote Verification
Designating an authorized representative should not be taken lightly. If employers choose to utilize third-parties as part of a remote Form I-9 completion process, they should take steps to help mitigate the risk of non-compliance.
- Set Expectations
When presenting an offer letter to a candidate, let them know that upon acceptance of that offer, they will need to help identify an individual that can help complete Form I-9. Provide clear instructions beyond those included within Form I-9 that let the candidate and third-party know what to expect, including the potential legal liabilities associated with being an authorized representative.
- Education on Demand
Employers should utilize technology to their advantage. Employers can leverage smartphones or web-based video conferencing or messaging solutions to walk the third-party through the Form I-9 completion process allowing the employer to see what their authorized representative sees and address potential mistakes in real-time. And while an employer will not be able to assess the authenticity of the documents presented physically, they can still get a sense of the document's relationship to the new hire.
- Review Immediately
Employers using a remote verification process should create a process to review all remotely completed Form I-9's swiftly. Beyond ensuring that acceptable employment authorization documents were received, employers should look for minor technical errors made by the candidate or the authorized representative. Make sure that the candidate's name matches the supplied documents, that date formats follow the form's instructions, and that the form is complete. Address any errors immediately with the candidate and authorized representative. Consider using an electronic solution to help manage the completion and storage of Form I-9.
Final Thoughts
Employers with remote workforces considering the virtual inspection process should assess if they are eligible to utilize virtual inspections and ensure that they comply with terms established by DHS. For those ineligible to conduct virtual inspections, under normal circumstances, employers would want to carefully vet a third-party to assess their ability to comply with Form I-9's requirements. With COVID-19 changing the way business functions, many employers are balancing the possibility of exposing their workforce to contagion against their necessity to maintain their operations. For some employers designating a household member or other third-party as an authorized representative to help facilitate the completion of Form I-9, while risky, could be a choice for compliance with the USCIS’s requirements.
