On July 18, 2020, Immigration and Customs Enforcement (ICE) confirmed that employers have an additional 30-day extension of a temporary policy allowing them to conduct the virtual Form I-9 remote verification and inspection. This relaxation of the Form I-9 remote verification requirement to physically inspect all new hires’ identity and employment eligibility documentation was granted earlier this year, due to the ongoing precautions related to the COVID-19 pandemic.
On March 19, 2020, the Department of Homeland Security (DHS) announced that it would temporarily amend the Form I-9 verification and reverification procedures under section 274A of the Immigration and Nationality Act. This provision was planned to be implemented for 60 days, but on May 19, and again on June 19, DHS extended the policy for an additional 30 days respectively. The latest extension of the Form I-9 remote verification rules is set to expire on August 19. While this provides employers with additional time to ensure compliance with the Form I-9 remote verification requirements, they should also take necessary steps and prepare for physical verification of employees’ original documents to confirm Form I-9 work authorization.
ICE’s I-9 Remote Verification Policy
Relaxed I-9 remote verification requirements provide a temporary alternative to in-person I-9 document review in light of precautions caused by the COVID-19 pandemic. Due to relaxed rules, Form I-9 Section 2 verification or Section 3 reverification can be completed remotely via an online meeting, email, or fax, provided employers retain copies of the documents, and complete the Form I-9 within three business days of an employee starting work.
These requirements are applicable only to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no flexibility is implemented. However, DHS will evaluate case-by-case situations where existing or newly hired employees are subject to COVID-19 quarantine or lockdown protocols.
All employees who were onboarded remotely need to report to their employer within three business days for in-person verification once the employer’s normal operations resume. This date may be different than the date the government policy ends.
While the DHS extended the virtual I-9 remote verification policy, they also confirmed that no additional extensions would be granted to employers who were served Notices of Inspections (NOIs) during March 2020 and have been in the process of responding to ICE. Furthermore, the U.S. Citizenship and Immigration Services (USCIS) temporary policy allowing for the acceptance of expired List B documents is still in effect. According to this temporary policy, any expired List B document that was not formally extended by the state’s issuing authority should be treated as a receipt. However, within 90 days after DHS terminates this temporary policy, the employee will be required to present a valid, unexpired document to replace the expired one presented when they were initially hired. The employee may also choose to present a different document.Use this comprehensive guide to learn everything you need to know about verification of work eligibility and proper completion of the Form I-9 while avoiding costly non-compliance mistakes.
Alternatives to the Virtual I-9 Remote Verification
Virtual I-9 remote verification and document inspection is not mandatory, and employers may continue to follow standard Form I-9 procedures for remote hires, including designating authorized representatives to act on their behalf and review documents in person. According to updated Form I-9 instructions, an authorized representative may be any person that employers designate to complete and sign the Form I-9 on its behalf.
Since the virtual verification can be complex and time-consuming, employers can opt for the authorized representative method, allowing friends and household members of the new employee to complete the section on their behalf. Also, waiting until August 19 or another policy extension to begin the process of physical document inspections for employees hired during the COVID-19 pandemic may be impossible to achieve within three short business days. Still, designating authorized representatives requires careful consideration of logistics and details as employers are ultimately responsible for any violations in connection with the I-9 remote verification process.
Taking Steps to Ensure I-9 Compliance
Though ICE has chosen to extend its I-9 remote verification for the third time, the Agency has no interest in allowing for relaxed I-9 remote verification to continue indefinitely, nor do they intend to waive the physical review requirement once businesses return to work. Thus, employers should take timely steps to ensure compliance. The longer they wait to begin the process of physical document inspection, the more challenging it will be to maintain I-9 compliance once the remote inspection policy ends.
For businesses that used the virtual I-9 remote verification option and are already in the process of resuming business, it is critical to ensure documents are physically inspected within three days of returning to work. Once this is completed, employers should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9 or section 3 if appropriate.
Once businesses start reopening, ICE may significantly increase worksite audits. This is why it is important to have a plan for resuming normal I-9 processes and create a return-to-work I-9 policy that describes what was done and when. In addition to this, using an advanced electronic I-9 system ensures higher security, compliance, and easier document processing. Thus, employers can review the completed I-9 forms together with the scanned supporting documents, and use reports and dashboards to find any forms needing review or approval. As a result, businesses simplify the process of remote hiring and ensure error-free I-9 processing within stipulated timelines.Handle I-9 processing with electronic I-9 solution fully integrated with E-Verify and experience the efficiency, consistency, and control needed to ensure error-free management of all Forms I-9.