All employers must verify the authority of new hires to work in the United States by completing the Employment Eligibility Verification Form I-9 (and E-Verify if they have registered to use it or are required to use it by law). This form applies to all persons who work in the U.S., regardless as to the country from which they are paid. For example, a Canadian citizen working in the U.S., but paid in Canada, requires an I-9. The I-9 is completed but kept with the employer until an appropriate U.S. government agent requests to see it. The employee must complete the I-9 no less than the first day of hire, and the employer has up to 3 business days, after the first work day, to complete Section 2. This is commonly referred to as the “three day rule.”
Before the COVID-19 pandemic, as part of this process, employers were required, without exception, to review original documents in the presence of the person presenting them, either directly or through an authorized representative.
On March 19, 2020, the Department of Homeland Security and U.S. Immigration and Customs Enforcement announced a “compliance flexibility policy” (hereafter “the Policy”) to allow certain employers to obtain, remotely inspect and retain copies of I-9 documents on a temporary basis as a result of the pandemic. This policy is set to expire on March 31, 2021.
Thereafter, 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.
If you are considering expanding your business into the United States or already have a presence in the U.S., please do not hesitate to contact us through our Consultation Form. You can also visit us at www.ingenuitycounsel.com.
About Ingenuity Counsel & Michael Kennedy
Ingenuity Counsel, based in Windsor, Ontario, Canada, provides cross border tax & United States legal services to Canadians. Michael Kennedy, with close to 20 years of legal experience, and his team at Ingenuity Counsel, advise Canadians who own property in the United States, particularly Michigan, California & Florida, with respect to federal income & estate tax, estate planning & probate administration.
Mr. Kennedy is an attorney-at-law admitted in the States of California, Michigan & Florida. He is also authorized as a Foreign Legal Consultant by the Law Society of Ontario to provide legal services in Ontario respecting the laws of the United States. Mr. Kennedy provides legal advice only as it pertains to U.S. laws. Prior to establishing Ingenuity Counsel in 2012, he practiced law in the United States for more than 10 years in California, Michigan and Florida. Michael has a U.S. law degree (JD) from Western New England University School of Law and his Master of Laws degree (LLM) from Georgetown University Law Center in Washington DC.