Verifying Employment Eligibility Is A Continuing Challenge For Employers

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Many US employers had difficulty hiring enough employees to meet recovering business demand
Many US employers had difficulty hiring enough employees to meet recovering business demand

It’s time to think about the HR/onboarding matter you’ve probably taken for granted: the I-9.

The I-9 is what employees must submit to show employment eligibility.

Submission typically entails providing the employer with documentation that establishes identity and employment authorization.

Simple, right?

Well, the kicker is that these documents must be physically inspected and, well, that proved rather difficult when everyone was working remotely.

In March 2020, the Department of Homeland Security announced a rule that provided flexibility regarding this in-person, physical inspection requirement by allowing employers to conduct the I-9 review remotely.

The was intended to be in place for 60 days.

Nearly two years later, this provision is essentially still in place – with the current “temporary” guidance set to expire on Dec. 31, 2021.

Employees can submit I-9 forms remotely for as long as the extension is in place, with employers needing to indicate “COVID-19” as the reason for the delay in physical inspection (as well as an understanding that the documents will be physically inspected if/when the employee returns to the office).

While it’s possible that DHS allows the extension to expire when the ball drops, that seems highly unlikely.

Concerns over the Omicron variant, including the return of travel bans, are a strong indicator that the government is in no hurry to do anything that would result in more in-person work experiences. It seems like a safe bet that the rule will get extended at least once more.

But I do know that the extensions will end, and you’ll be left with a boatload of new hires, all of whom were hired with the expectation of being 100% remote with little to no chance of coming into your office to have their I-9 forms physically inspected.

What then?

In situations where you have an employee with no chance of conducting an in-person review in the office, employers should utilize an “authorized representative” to conduct the physical review of the I-9.

Depending on where the employee is located, the authorized representative can be anyone, ranging from a notary to a family member. However, I would probably recommend combining the use of an authorized rep with some form of remote review of the documents to ensure the process is completed smoothly.

Did I mention that the employer remains liable for improperly completed forms?

SHRM sent a request to DHS this summer asking that the remote option be permanently extended.

It is possible to wait until if/when that happens before you choose to either conduct your mass in-person review of I-9 forms (which must be completed within a three-day window) or utilize an authorized representative. I would recommend utilizing the authorized representative option sooner rather than later and save yourself the headache.  

Brian G. Klein is the co-founder of Weinstein + Klein P.C., a boutique law firm based in Morristown, N.J., that focuses on the representation of business owners. He primarily finds himself counseling clients on various labor and employment law issues.

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