UPDATE: March 20, 2020: ICE granted an exception to Form I-9's document review requirements. Certain employers may now review documents remotely, it said in a statement.
In HR Dive's Mailbag series, we answer HR professionals' questions about all things work. Have a question? Send it to [email protected]
Q: Our entire company is working remotely now due to the new coronavirus and we'll be onboarding some new hires soon. Can we review their Form I-9 documents in a video chat or accept a photo of the documents?
A: No. Employees' Form I-9 identification for authorization to work in the U.S. must be examined in person, according to U.S. Customs and Immigration Services.
But could there be a COVID-19 exception in the works? USCIS referred HR Dive to U.S. Immigration and Customs Enforcement (ICE), and it did not respond to multiple requests for comment.
"Everyone wants to know," Susan J. Cohen, founding chair of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo's immigration practice, told HR Dive in an interview. "I'm getting more questions about this topic than many other things right now from clients," she said. But for now, it's "business as usual."
Fortunately, employers have the flexibility to designate someone to complete the examination on their behalf. For those not subject to other requirements (like California's, for example), the representative can be anyone.
Theoretically, your new hire could have any trusted adult handle this task, an expert previously told HR Dive, but you may want to contract with someone to do it, as you'll be held liable for any violations. A local law firm or notary can be a good choice, although USCIS has cautioned that notaries are not acting as a notary when they do this task, and should not place their seal on the form.
There also are vendors that provide this as a service, Cohen noted. Or if you have workers all over the country, you could delegate that task to local employees, training them on the necessary steps. Any employee could do this on behalf of HR, Cohen explained. During normal times, that's not a best practice but "in exigent times like these, employers can provide training inside and outside the company."
Employers holding out hope for an exception may be out of luck, according to Cohen. While such a move could include permission to review documents remotely or a time extension, the Trump administration may not be keen on that idea. "This administration is particularly focused on [immigration]," she said, "so they may not come forward with flexible guidelines." Because the objective behind the in-person review is to ferret out fraudulent documents, "the government might be reluctant."
Still, Cohen called for action, saying "either they should allow some flexibility in the way employers can view documents or, if we get to a point where no one is comfortable meeting in person with any other person because the virus becomes so virulent, then they should consider [a] grace period." Since the form was mandated in 1986, "we've not faced a situation like this," she said; "it's completely unprecedented."
