Remaining compliant with immigration law and Form I-9 requirements has always been challenging for employers, but the global pandemic has made this confusing landscape even more complicated with changing regulations and verification methods.
The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification. This remote Form I-9 verification policy was introduced for employers operating remotely due to the COVID-19 pandemic.
The policy applies only to employers and workplaces that are working entirely remotely. Therefore, employees hired on or after April 1, 2021, who work in a remote setting are temporarily exempt from the physical inspection requirements associated with Form I-9. If there are employees physically present at the work location, no remote form I-9 verification rules are being implemented.
DHS and ICE have extended the remote form I-9 verification policy eleven times over the past year and a half. It was set to expire on August 31, 2021, but has been extended until the end of 2021. The latest four-month extension is helpful because many companies have not been able to return to a non-remote work environment on a consistent basis. Nevertheless, employers should be ready for termination of the flexibility regarding remote Form I-9 verification. Otherwise, they can become subject to fines ranging from $573 to $20,130 per violation.
Form I-9 and COVID-19 Pandemic
During the flexibility period, employers with employees taking physical proximity precautions due to COVID-19 were not required to review the employee’s identity and employment authorization documents in the employee’s physical presence. Instead, employers could inspect employees’ documents remotely, over a video link, fax, or email. At the same time, they had to obtain, inspect, and retain copies of the documents within three business days for purposes of completing Form I-9, Section 2.
Once normal worksite operations resume, employers have to review the employee’s documents in person within 3 days of a return to the work location for all employees who were hired using remote Form I-9 verification. When physical inspection takes place, employers also need to enter COVID-19 as the reason for the physical inspection delay in the Additional Information field of Section 2. Moreover, they need to add that documents were physically examined followed by the inspection date.
The current extension of the remote Form I-9 verification policy includes guidance for employees hired on or after June 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions. The physical I-9 inspection exception applies to these hires until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension is terminated, whichever is earlier.Ensure timely and accurate verification of the identity and employment eligibility with this detailed guide and create a process in place to confirm that every Form I-9 is updated and stored correctly.
Instead of using DHS’s temporary remote Form I-9 verification provisions, employers can utilize the existing process for remote hiring and have an authorized representative complete the Forms I-9. In this case, an authorized representative physically examines each document presented to determine if it reasonably appears genuine and relates to the employee presenting it. Employers are not obliged to review the documents for these Forms I-9 again, so this method can save a lot of time if implemented carefully. However, employers remain liable for any violations in connection with the form or the verification process. Therefore, they should check all forms completed by authorized representatives for errors to make any necessary corrections.
Preparing for Normal Operations and the Return of I-9 Compliance Enforcement
Once ICE terminates remote Form I-9 verification flexibility, employers can easily become overwhelmed with conducting in-person verification and reverification within three business days. To prevent this, employers should consider starting to verify those hired and verified remotely on or after March 20, 2020, as soon as possible. In preparation for this process, it would be useful to make a list of all employees who were verified virtually, when they will be returning to work, and the deadline for their in-person verification.
In addition to designing a process that can be implemented and completed easily and quickly, employers need to communicate with their employees and explain why they are being asked to complete the Form I-9 process. Affected employees should not feel that they are in any way being treated differently from other employees.
Apart from businesses returning to normal operations, DHS and ICE will also soon begin with I-9 audits making it necessary for employers to prepare Forms I-9 for inspection and ensure they are compliant with I-9 requirements. Otherwise, they might be exposed to thousands of federal fines, with an average amount of $2,000 per substantive error. Consequently, employers should regularly conduct internal audits of the current Forms I-9 to confirm they are updated and stored correctly, but also to discover any discrepancies, correct them, and mitigate risks.
Furthermore, COVID-19 proves the obsolescence of paper which is why employers should consider software solutions to ensure I-9 compliance and eliminate missing and incomplete Forms I-9, or the ones containing mistakes and errors. With electronic I-9 management, it is easy to establish detailed audit trails to ensure fully compliant electronic forms. As a result, employers maintain accuracy and completeness, while staying up to date with the constantly changing I-9 rules and regulations.Eliminate inefficiency, paper-driven errors, inconsistent I-9 management, and prepare for potential government scrutiny with I-9 compliance software solution.
Editor’s Note: This post has been updated for accuracy and comprehensiveness.