The Department of Homeland Security (DHS) requires that all employers in the U.S. complete Form I-9, Employment Eligibility Verification, for all employees hired, regardless of their citizenship status. Form I-9 is used to verify the identity and the employment eligibility of the employee. The Form I-9 verification process has historically involved the participation of both the employee and the employer, including the completion of specifically designated sections of the Form I-9 by the employee and employer, the in-person physical inspection of the required verification documents presented to the employer by the employee, and proper retention of the completed forms and records by the employer for the mandated period of time. Failure to do so properly can result in significant fines and penalties for the employer.

Recent History of Changes to Form I-9 Compliance Obligations

On March 20, 2020, in light of the precautions implemented by employers due to the COVID-19 pandemic, DHS announced that it would exercise discretion to temporarily defer the in-person verification requirements associated with Form I-9 under Section 274A of the Immigration and Nationality Act (INA). Such flexibilities were accompanied by DHS guidance which stated that employers with employees taking physical proximity precautions 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, in the face of this international health crisis DHS instituted a provision that allowed employers to inspect employees' documents remotely and obtain copies within three business days. Further, all employees who were onboarded using remote verification must report to their employer within three business days of the resumption of "normal operations" for in-person verification.