By Bruce E. Buchanan
The Department of Homeland Security (DHS) announced it will defer the requirements for employers to review Form I-9 documents (identity and employment authorization documents) in-person with new employees where employers and workplaces are operating completely remotely due to COVID-19.
It appears on first blush this new caveat to I-9 compliance is only applicable “where employers and workplaces are operating completely remotely” – meaning all the employer’s employees are working remotely. However, this exception may apply if only a portion of the workforce is working remotely due to COVID-19. The pertinent language states:
This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9…. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.
The phrase, “employers and workplaces”, seems to imply DHS will be looking at the particular workplace. If not, why did DHS use both “employers and workplaces” instead of just employers. Thus, if an employer has one workplace open while others are closed due to COVID-19 “Safe at Home” orders, one could arguably allow an employer to use remote verifications for new hires al the closed locations, where all employees are working remotely. Why? Because that specific workplace is operating remotely.
In a different scenario, what if an employer has employees working on-site, but wants to use remote verification for new hires in order to maintain the 6 feet social distancing. This appears to be where the employer may use the sentence “[I]f newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate (remote verification) on a case-by-case basis” to their advantage
DHS included existing employees being subject to quarantine as opposed to just new hires. Thus, employers with on-site employees could argue in favor of using the remote verification if a new hire will be working remotely. Secondly, an employer’s HR department may be operating remotely due to COVID-19 restrictions while the plant is operational as an essential business. In both situations one could arguably use remote verification and if audited by ICE, ask for forgiveness for this interpretation.
However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email) and obtain, inspect, and retain copies of the documents, within 3 business days for purposes of completing Section 2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 “Additional Information” field.
These provisions may be implemented by those employers, as identified above, for a period of 60 days from the date of this notice, or from March 20, 2020 until May 19, 2020 OR within 3 business days after the termination of the National Emergency, whichever comes first.
E-Verify has also made two temporary changes. One, DHS is extending the timeframe to take action to resolve Social Security Administration (SSA) or Department of Homeland Security (DHS) Tentative Non-confirmations (TNCs) due to SSA or DHS office closures to the public.
After your employee is notified of their TNC and decides whether to take action to resolve the TNC, the employee should continue to acknowledge the decision on the Further Action Notice (FAN). Employees who choose to take action to resolve a TNC are referred to SSA and/or DHS. Since it is likely to take additional time to resolve a TNC, employers may not take any adverse action against an employee because of contesting the E-Verify case during their extended interim case status.
Plus, although employers are still required to create cases for their new hires within 3 business days from the date of hire, 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 should be on the alert for additional changes as the government’s response as it relates to its reaction to COVID-19 is fluid.
Siskind Susser PC [email protected] www.visalaw.com