Form I-9 & E-Verify Compliance in a Time of Remote Work and Telecommuting

In light of the coronavirus (COVID-19) pandemic, here are some questions for employers to consider with regard to Form I-9 compliance.

Have government agencies announced any relaxation of the rules related to Form I-9 compliance?

Yes. On March 20, the US Department of Homeland Security (DHS) announced that it will defer the physical presence requirements for Form I-9 completion for employers and workplaces that are operating remotely and permit virtual review, which must be timely. In-person verification must occur within three days of return to worksite or the end of the national emergency. 

In response to the challenges employers are facing when seeking to comply with Form I-9 requirements during the COVID-19 emergency, DHS announced that it will exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act. Pursuant to this guidance:

• The physical in-person review of an employee’s documents proving identity and eligibility to work may be performed remotely on an interim basis.
• This exception applies only to employers with employees taking physical proximity precautions due to COVID-19; employees physically present at a work location are not eligible for this exception.
• In lieu of an in-person review, employers must perform a remote inspection via video, fax, scan/email, or other remote means. Employers must obtain and retain copies of the documents presented by the employee.
• This remote review is subject to the three-day timeliness rule.
• Employers must enter “COVID-19” in the Section 2 Additional Information field to indicate that the initial review was not performed in-person.

For further details, read our March 22 LawFlash, DHS Announces Flexibility in Form I-9 Compliance Requirements.

Have government agencies announced any relaxation of the rules related to E-Verify compliance?

Yes. E-Verify is extending the timeframe to take action to resolve Social Security Administration (SSA) Tentative Nonconfirmations (TNCs) due to SSA office closures to the public. E-Verify is also extending the timeframe to take action to resolve US Department of Homeland Security (DHS) TNCs when an employee cannot resolve a TNC due to public or private office closures.

Employers must notify the employee about the TNC result as soon as possible. After the employee is notified of the TNC and decides whether to take action to resolve the TNC, the employee should acknowledge the decision on the Further Action Notice, and the employer should notify E-Verify of the employee’s decision. Employees who choose to take action to resolve a TNC are referred to SSA and/or DHS.

Under the new timeframes:

• Employers are still required to create cases for their new hires within three business days from the date of hire.
• 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 specific reason.
• Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.

How can my company comply with the Form I-9 rules when new hires are starting their jobs remotely or when HR personnel are telecommuting?

The most practical way to satisfy the Form I-9 rules regarding timing and in-person verification of documents for a new hire who cannot meet with a company representative may be to rely upon an “authorized representative” to verify the completion of Section 1 and complete Section 2 of the Form I-9 on behalf of an employer.

Who may be an authorized representative?

Employers have broad latitude in designating an authorized representative. An authorized representative can be any person designated by the employer to complete and sign Form I-9 on the employer’s behalf. No agreement or agency relationship is required to appoint an authorized representative.

While there are no official restrictions on who may be an authorized representative, the authorized representative generally should not be a person with a personal interest in the individual’s employment. Common authorized representatives include business services professionals, notaries (where permitted; not in California), bank personnel, or other third parties. If an individual’s access to an unrelated third party is restricted due to COVID-19 issues, then a family member or household member is not prohibited from completing Section 2 as an authorized representative. We expect that US government agencies would be flexible under these circumstances as long as the authorized representative properly reviews the employee’s documents and signs the Section 2 certification.

What are the rules regarding completion of Section 2 of the Form I-9?

Section 2 must be completed no later than the third business day following the start of work (if a person starts on Monday then Section 2 must be completed no later than Thursday).

See the complete instructions for completing Form I-9. The employer’s essential obligations are to

• review Section 1 to ensure the employee completed it properly;
• review the individual’s original evidence of identity and employment authorization in the presence of the individual;
• ·verify that the document(s) presented constitute either a List A document or a combination of a List B and a List C document, and record information from the document(s) in Section 2 of the Form I-9;
• sign the Section 2 certification under penalty of perjury; and
• make copies of any List A US passport or passport card, permanent resident card (I-551), or employment authorization document (I-766)  presented by the individual if the employer is enrolled in E-Verify.

May an authorized representative perform these Section 2 duties for an employer?

Yes, an employer may designate an authorized representative to act on the employer’s behalf to complete Section 2.

What obligations does an authorized representative assume when completing Section 2 on behalf of an employer?

The authorized representative must sign the following attestation in Section 2: I attest, under penalty of perjury, that (1) I have examined the document(s) presented by the above-named employee, (2) the above-listed document(s) appear to be genuine and to relate to the employee named, and (3) to the best of my knowledge the employee is authorized to work in the United States.

Accordingly, the employer must take steps to ensure that the authorized representative understands and takes seriously the significance of completing Section 2.

What if the authorized representative makes a mistake or does not faithfully complete and sign Section 2?

The employer will be “liable for any violations in connection with the form or the verification process, including any violation of the employer sanctions laws committed by the person designated to act on [the employer’s] behalf." Accordingly, employers should take care in the naming of an authorized representative. Where feasible, employers may consider being on the phone, video stream, or webcam with the authorized representative to coach the inexperienced authorized representative through the process in real-time.

My company uses an electronic Form I-9 system, so how can I involve an authorized representative in the process?

Although you typically complete Form I-9 electronically, you may find that impractical with an authorized representative. The best alternative may be to satisfy the Form I-9 compliance obligation by completing a paper Form I-9 or an electronic Form I-9 using the USCIS PDF form filler.

The new hire should:

• print the Form I-9;
• review the Form I-9 instructions;
• complete and sign Section 1;
• meet with the authorized representative in person and present acceptable documents to establish identity and eligibility to work in the United States;
• have the authorized representative review the individual’s documents and complete Section 2 and sign the Certification;
  • you might consider having the authorized representative do this in real-time with company HR via FaceTime, Skype, Google or a similar platform;
• follow existing company rules with respect to copying the identity and employment eligibility documents; and
• mail or courier the original Form I-9 and any photocopies to the appropriate contact at the employer.

Upon receipt of the original Form I-9, the company official should:

• ensure proper completion of the Form I-9; and
• scan and upload the Form I-9 and any copied documents to the company’s electronic Form I-9 platform.

The feasibility and workflow for this will depend on the capabilities of the electronic Form I-9 system. A PDF of a properly completed paper Form I-9 that is maintained in an otherwise acceptable electronic Form I-9 environment will be compliant.

My company uses E-Verify. If I appoint an authorized representative to complete Form I-9 on time, how do I ensure that the E-Verify case is submitted on time?

Completing a paper version of Form I-9 with an authorized representative will address the Form I-9 compliance obligation; however, employers enrolled in E-Verify must still complete a timely E-Verify case.

Employers that use an electronic I-9 platform to complete the E-Verify case concurrently with completing the Form I-9 will need to coordinate with their vendor to complete an E-Verify case independent of the electronic Form I-9.

Employers that do not process E-Verify cases concurrently with an electronic Form I-9 can continue to complete E-Verify cases as long as the authorized representative or the individual immediately provides the company’s E-Verify administrator with legible copies (photo, scan, email) of the Form I-9 and any List A document that is required to be photocopied for E-Verify purposes. The E-Verify case does not need to be submitted by the same person who performs the Form I-9 employment eligibility verification. If your E-Verify administrator is unable to submit the E-Verify case on time due to complications arising from the COVID-19 pandemic, then that explanation can be entered into the E-Verify case to justify the untimely submission

What can we do to mitigate exposure if we already missed the timeliness deadline or did not conduct an in-person review?

Employers who are unable to comply with the timeliness and in-person review requirements should complete the Form I-9 at the earliest opportunity ,as best as possible, and should document the reason for the failure with a memo to the file or a brief note attached to the Form I-9. One can speculate that if a company faces a government Form I-9 investigation in the future, investigative agencies might be forgiving of deficiencies associated with the challenges of the COVID-19 pandemic. If that is the case, then as is typical of other exercises of prosecutorial discretion, the agencies will likely look at the totality of the circumstances and whether the employer’s overall compliance efforts and good faith attempts to manage the COVID-19 challenges support a favorable exercise of prosecutorial discretion.

Contact

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact the author, Eric Bord.