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Are Your I-9s Ready for the New Normal?

I-9s During COVID-19

June 3, 2020

As you think about adjustments to your business related to COVID-19, it is time to make sure your I-9s are “healthy” and your I-9 process matches your new normal. Audits and enforcement have been suspended during the national emergency but will likely return with a vengeance given high unemployment rates and preparations the government has made to handle large audits.

To manage this risk, the first question you must answer is whether you will continue to work remotely, bring all employees back on site or have some combination of both. This will determine how you prepare I-9s going forward, as well as how you make sure any I-9s completed during lockdown are compliant.

Remote Work Considerations

If some or all employees will continue to work remotely, the next question is how to manage on-boarding. If employees are expected to report to a set location, I-9s can be handled as usual with the new employee presenting documents in person.

If you will be on-boarding remotely, your I-9 process must change. I-9 documents must be reviewed in person with the employee present. A temporary exception is in effect until June 18, 2020, but it is limited. Long term, the only way to correctly complete an I-9 for a remote worker who is not expected to come into the office is through an agent.


An agent can be any person. However, choose wisely because you will be stuck with any mistakes made. The best practice is to provide the agent with instructions and check the I-9 remotely before the agent sends it to you.

The agent must review documents with the new employee in person, fill out Section 2, sign it, write the employer information in the signature block and write “Agent” in the “Title of Employer or Authorized Representative” blank. The agent need not be paid or have a contract, and could be a spouse or roommate. An email appointing the person as agent is a nice touch, but not necessary.

The agent must send the original signature I-9 and a copy of the documents presented if you normally keep copies. If you use E-Verify, copies of certain documents are required to be kept.

Electronic Systems

You’re Liable If you normally use an electronic on-boarding system, check with your vendor to see if temporary access can be granted to allow an agent to utilize it. Many vendors are releasing remote I-9 solutions.

Remember that in an audit, your business will be fined for your vendor’s lack of compliance with the intricate electronic I-9 rules. A paper I-9 is always acceptable even if you usually use an electronic system.

Temporary Exemption Expires on 6/18/20

The temporary exception to in-person document review allows an employer to view documents through scan, fax or video conference and complete the I-9 provisionally. However, this exception is valid only if the entire workforce is remote or if the person being on-boarded cannot come to the office in person because of COVID-19 protocols.

When “normal operations” resume, Section 2 of the I-9 must be completed in person and signed, with a note that the remote review was done because of COVID-19. A memo must accompany such I-9s to explain why the exception was used.

The exception raises many questions: What if we never resume “normal operations”? What if that employee will never be on site? How is the I-9 to be completed once an in-person review has occurred? What if the employee presents new or different documents in person than what were reviewed remotely? What if your electronic I-9 system does not allow an update to the I-9 once it is completed? Because guidance is not clear, these questions are best answered by legal counsel well-versed in I-9 rules.

Expired List B Documents

Another accommodation made during the national emergency is that List B documents (showing identity) expiring after March 1, 2020, may be accepted even though expired. The rule is complicated because it is different if the state has automatically extended a document, such as a driver’s license. If you have accepted expired List B documents, you should consult counsel to make sure your procedure for managing these documents going forward is correct.


Finally, if you are an E-Verify employer, the duty to run E-Verify never ceased. However, because both Social Security and Immigration offices were closed, employers could not take adverse action on tentative non-confirmations (TNCs). If you failed to run E-Verify or if you have TNCs outstanding, that is another area in which counsel should be sought.

The Big Picture

Davis Brown still hears from employers who believe that I-9s are only required for foreign workers, so let’s dispel that myth for good. You must complete an I-9 for every employee regardless of their citizenship.

We also hear that some employers believe I-9s must be done each year. The I-9 is completed only upon hire, with some special rules for seasonal or re-hire situations.

Even in a pandemic, employers should pay close attention to the rules about completing I-9s. We have no reason to believe that the administration will relax enforcement, and, in fact, we are likely to see an uptick in I-9 audits. Although I-9s may seem like a minor detail amid a pandemic, fines are close to $2,000 per violation, which adds up! If your employment practices have changed due to COVID-19, it’s time to review your I-9 procedures and adapt them to assure compliance.

You can count on The Partnership to continue to share accurate and fact-based updates as well. See more on COVID-19 here.

Dentons Davis Brown

Dentons Davis Brown Law Firm provides legal services in Greater Des Moines (DSM).