On March 16, 2020, the American Immigration Lawyers Association (AILA) sent a letter to the Acting Secretary of the U.S. Department of Homeland Security seeking guidance regarding employer I-9 Employment Eligibility Verification requirements during the Coronavirus (COVID-19) public health emergency.

In the letter, AILA requested guidance regarding “Form I-9 verification and reverification, E-Verify and compliance requirements for U.S. businesses throughout the remainder of [the] national emergency”.  Of mounting concern among employers is the requirement that the I-9 process must be completed in person for all new hires and reverifications / rehires.

AILA notes in its letter, “the nature of the national public health emergency brought on by the COVID-19 global pandemic and recommendations from federal, state, and local government officials, is such that compliance with [I-9] requirements becomes impossible if the employer follows those recommendations to avoid spreading the virus.”

While employers cope with a variety of safety and other concerns for their employees and their businesses, guidance from DHS could provide welcome respite regarding I-9 requirements.  As a start, in its letter AILA recommended to DHS that it consider taking the following practical measures:

  • Temporary suspension of, or greater leniency in, the I-9 completion timeframe requirement for all businesses during the national emergency,
  • Temporary permission for employers to utilize video or other virtual verification of acceptable documentation instead of mandatory in-person documentary verification including time for completion of E-Verify requirements for enrolled employers—provided that within a reasonable period of time when the employer is able to do so, the employer physically examines the employee’s I-9 documents,
  • Issuance of an official statement that a reasonable approach will be taken when considering compliance for new hires and for reverification of existing employee’s work authorization during the COVID-19 pandemic emergency,
  • Temporary hold on routine, non-criminal Form I-9 inspections (which incidentally would also benefit government personnel with social distancing from COVID-19),
  • Adequate extensions by Homeland Security Investigations’ (HSIs’) Special Agents and Auditors to existing deadlines related to last week’s round of Form I-9 Notices of Inspection.

For now, employers must be aware that the Form I-9 Employment Eligibility Compliance requirements remain in full effect.

If you have questions regarding this topic or about Form I-9 Employment Eligibility Verification Requirements, please contact Catherine Wadhwani at cwadhwani@foxrothschild.com or Mark Harley at mharley@foxrothschild.com or any member of the firm’s immigration practice group .  Ms. Wadhwani and Mr. Harley can be reached at 412-391-1334.

Ms. Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For nearly 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and U.S. Consulates worldwide.  Ms. Wadhwani is based in the firm’s Pittsburgh, Pennsylvania, office.  She can be reached at cwadhwani@foxrothschild.com or 412-391-1334.

Mr. Harley is a Partner in the Immigration Practice Group at Fox Rothschild LLP.  Mr. Harley’s practice covers the United States and Consulates worldwide.  Mr. Harley is based in our Pittsburgh, Pennsylvania office.  He can be reached at mharley@foxrothschild.com or at 412-391-2418.