Returning to Your Physical Office After COVID-19?:  Remember to Resume Physical Inspection of I-9s

Written by David S. Rugendorf

The return to the physical workplace environment after approximately two years of remote work arrangements brings with it many challenges and tasks.  What employers may easily overlook is that “normal” in-person Form I-9 administration procedures resume upon employees’ return to the physical office.  Moreover, physical inspection of documents is also required for employees who were on-boarded during a COVID-19 remote work period.

As a pandemic related measure, the Department of Homeland Security (DHS) announced its I-9 flexibility policy on March 20, 2020.  Specifically, DHS announced that employers with employees taking physical proximity precautions (i.e. remote work) due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. Instead DHS instructed employers to review these documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents within three business days after the commencement of employment.  Employers were advised to enter “COVID-19” as the reason for the physical inspection delay in Section 2 of the Form I-9.  

Once normal operations resume, all employees who were on-boarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.

The flexibility provisions only applied to employers and workplaces that were operating remotely. If there are employees physically present at a work location, no exceptions were or are made for in-person verification of identity and employment eligibility documentation for Form I-9.

Finally, employers whose employees continue to work remotely should be aware that the DHS COVID I-9 flexibility rules mentioned in this bulletin will expire on April 30, 2022, unless extended further.  That means that unless the policy is extended, all employees’ employment verification documents must be physically inspected regardless as to whether the employee works in the physical office, or works remotely.

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