Update: On August 18, 2020, ICE announced that it will extend until September 19, 2020, its temporary virtual I-9 document verification procedures.

This article briefly summarizes the recent governmental guidance on Form I-9 requirements, travel, and visa processing and services, among other matters, in response to the national emergency caused by the COVID-19 outbreak.  As this is a very fluid and rapidly changing situation, employers should monitor the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) websites and consult with their employment immigration counsel to ascertain whether the guidance has evolved, warranting a reassessment of business strategies.

U.S. Level 4 “Do Not Travel” Advisory

On March 19, 2020, the U.S. Department of State issued a “Global Level 4 Health Advisory – Do Not Travel” urging all U.S. citizens to avoid all international travel. For residents currently out of the country, the advisory instructs them to return immediately or be prepared to remain abroad indefinitely, due to the global impact of COVID-19.  This appears to be an unprecedented advisory issued by the State  Department of State. 

Closure of United States Borders for Non-Essential Travel

Canada. Effective March 21, 2020, and by agreement between the governments of Canada and the U.S., the border between the two countries will close for all non-essential travel. The closure will remain in effect for at least 30 days. During the border closure, Canadian citizens will no longer be permitted to enter the U.S., and U.S. citizens will not be permitted to enter Canada, unless they can establish that they will be providing “essential services” (such as medical, transportation and other supply chain services necessary for continued trade between the countries).  Essential travel and trade will be allowed to promote health and safety and support the economy.  

Mexico. President Trump announced that the border with Mexico also will close on March 21, 2020, except for travel deemed essential due to the COVID-19 crisis. “Essential services” appears to include medical, emergency response, and public health services.  As with the Canadian border closure, the Mexican border closure should not impede lawful trade and commerce. 

Flexibility in Form I-9 Compliance

On March 20, 2020, DHS announced flexibility in the physical presence requirements for the Form I-9 compliance for employers and workplaces that are operating remotely during the COVID-19 outbreak.  Employers facing the challenge to personally verify employees’ documents while working remotely due to the COVID-19 pandemic should strictly follow the DHS guidance, which in relevant part provides:

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. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three 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 once physical inspection takes place after normal operations resume. 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. These provisions may be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first.

Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.

Once normal operations resume, all employees who were onboarded 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.

Importantly, this guidance does not apply if there are employees physically present at the work location.  For such situations, the in-person verification of identity and employment eligibility documentation still applies.  However, DHS will made case-by-case evaluations in instances where a newly hired employee or existing employee was subject to a COVID-19 quarantine or lockdown.

Authorized Representatives.  If the above is not a feasible option for the employer, an employer can designate a third party as an authorized agent to verify the I-9 documentation.  In that instance, the agent must meet the employee in person and inspect the employee’s documents.  Importantly, however, the agent must examine the documents and complete Section 2 by signing the certification.  As the authorized agent’s conduct will be imputed onto the employer, the employer should strive to designate an agent that will properly verify employees’ documents.  The DHS guidance notes that the employer “is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.”  

For any I-9s remotely completed, employers should continue to carefully review the forms for any omissions or mistakes.  Specifically, employers should inspect the I-9s and copies of the documentation to confirm that the correct documents were accepted and all sections were properly filled out and signed.

Some states have restrictions on designations of authorized representatives.  For example, in California, a notary public, who is not also a qualified and bonded immigration consultant, may not complete Form I-9 even when acting in a non-notarial capacity.  Employers considering retention of an authorized representative for these purposes should be aware of any such restrictions in their state. 

Given the exigent circumstances and the fact that so many employers will be in the predicament of addressing the challenges related to the COVID-19 outbreak, employers should take whatever steps possible to demonstrate their good faith effort to comply with the Form I-9 requirements.

Suspension of Routine Visa Services

The Department of State also temporarily suspended all routine visa services at all U.S. Embassies and Consulates worldwide, cancelling all routine immigrant and nonimmigrant visa appointments as of today, March 20, 2020.¹ Embassies and consulates will “continue to provide urgent and emergency visa services.” The Department of State indicated that overseas missions will resume routine visa services as soon as possible, but did not provide a specific time frame. Services for U.S. citizens continue to be available (with additional information available on the website of each respective embassy).

While routine immigrant and nonimmigrant visa appointments are cancelled, the Machine Readable Visa (MRV) fee (used to schedule these appointments) will remain valid and may be used for future visa appointments in the country where it was purchased within one year of the date of payment. The Department of State advised that applicants with an urgent matter and the need to travel immediately should follow the guidance provided at the Embassy’s website to request an emergency appointment. The cancellations will not affect the Visa Waiver Program.

Given the uncertainty for routine consular availability at the present time, employers of immigrant and nonimmigrant visa applicants should consider alternative filings with U.S. Citizenship and Immigration Services where applicable, such as in petitions for in-country extension of status or change of status. Employers should also remain mindful of delays involved with worldwide U.S. consulate closures in the event that employee applicants are required to travel abroad to obtain new visa stamps or for other routine appointments, as well as the possibility of additional travel restrictions impacting employees’ return to the U.S.

Suspension of Notices of Inspection

On March 20, 2020, DHS announced a temporary suspension in the issuance of Notice of Inspections (NOIs) until further notice.  Generally, upon receipt of an NOI, employers are required to produce the documents identified in the notice within three days.  With the temporary suspension, employers that were served an NOI by ICE during the month of March 2020 and have not already responded will be granted an automatic extension for 60 days from the effective date.  At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.  

Flexibility in Submitting Required Signatures

Due to the ongoing COVID-19 National Emergency, ICE announced that it will accept all benefit forms and documents with electronically reproduced original signatures, including the Form I-129, Petition for Nonimmigrant Worker, for submissions dated March 21, 2020, and beyond.  Specifically, this means that:

a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified. For forms that require an original “wet” signature, per form instructions, USCIS will accept electronically reproduced original signatures for the duration of the National Emergency. This temporary change only applies to signatures. All other form instructions should be followed when completing a form.

Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature.  USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.

We will continue to monitor the situation and report on further developments.