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DHS extends I-9 virtual verification until May 31, 2021 and clarifies position on operating remotely

Today, U.S. Immigration and Customs Enforcement (ICE) announced a two-month extension of their remote I-9 inspection allowance, providing yet another temporary reprieve for employers operating remotely as a result of the COVID-19 pandemic.

More importantly, however, the agency also issued new guidance that clarifies and expands the scope of employees who are temporarily exempt from the I-9’s physical inspection requirements.

We’ll explore each of these topics in detail below. But first, a very quick recap.

Remote I-9 Inspection – Revisited (yet again)

If you’re keeping score, this is the 9th extension of the flexible pandemic-era I-9 policy that was first announced and implemented by ICE last year – right as employers began shutting down their workplaces and shifting to remote work (where possible).

Under the original guidance, employers and workplaces that are operating remotely are not required to review identity and employment eligibility documentation of new hires in-person in the course of completing the I-9. Instead, employers may inspect documents remotely (through video teleconferencing, email, fax, etc.) as long as they meet up with the employee to examine the documents once normal operations resume.


A Remote Chance of Being Remote?

While many organizations appreciated the temporary relaxation of I-9 rules, others found virtual verification to be a tad confusing and somewhat limiting in practice. In particular, businesses often struggled with the threshold question – would the government consider them to be a remote employer if only a portion of their workforce was working from home?

From the beginning, ICE made it clear that this policy was intended only for employers and workplaces that are operating remotely as a result of COVID-19. If there are employees physically present at a work location, ICE noted that no exceptions were being implemented at this time.

However, the very next sentence of their original policy guidance provided an exception anyway, noting that if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.

No further guidance or examples were given, and employers were ultimately left to their own judgment as to how far this “loophole” of sorts could be opened.

New Guidance for Remote Employees Hired on or After April 1, 2021

Today, ICE included new guidance that clarifies (to a degree) the criteria for determining when a remote employee can be considered exempt from the I-9 physical inspection requirement.

In a nutshell, ICE explains that employers can use virtual verification for employees hired on or after April 1, 2021, as long as they work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the I-9 physical inspection requirements until they undertake non-remote employment on a regular, consistent, or predictable basis or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.

Importantly, ICE also updated their original March 20, 2020 guidance with this expanded evaluation criteria and tied it specifically to the aforementioned “case by case” exception scenario that was contemplated from the start. Below is an excerpt of the revised policy:

The flexibility announcement issued on March 20, 2020, notes that DHS will evaluate certain COVID-19-related Form I-9 completion practices on a case-by-case basis as they relate to the physical inspection of Form I-9 documentation. Accordingly, as of April 1, 2021, the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis.

Employers may now interpret this provision to mean that they can use I-9 virtual verification for work-at-home (or otherwise “remote”) employees hired on or after April 1, 2021, even if other employees are present at the workplace.  The determining factors are as follows:

  • Does the employee report to work at a company location on any regular, consistent, or predictable basis? If no, continue to the next question.
  • Does the employee work exclusively in a remote setting due to COVID-19-related precautions? If yes, employee is temporarily exempt from the physical inspection of documents that may be required by either Section 2 or Section 3 of the I-9.

There are two places where you can read the guidance – in a short paragraph in today’s press release, and in the original March 20, 2020 guidance, which as has been annotated with a March 31 update.

Return to Work Preparation 

Although virtual verification is here to stay until at least May 31, 2021, ICE notes in their updated guidance that employers may, in their discretion, commence the in-person verification of identity and employment eligibility documentation in advance of the policy ending. Employers wishing to do so will need to plan out their verification process carefully, and decide exactly how they will update their I-9s. As previous discussed, DHS has published conflicting guidance on exactly how employers should annotate their I-9 forms when the required physical inspection is performed by a different individual.

Use of Authorized Representatives

While the virtual verification policy remains valid (at least until May 31), employers should strongly consider another viable option – using authorized representatives for remotely hired and reverified employees. As we’ve discussed in the past, the authorized representative path has a lot of advantages over virtual verification, not the least of which is the fact that it’s always an available option for employers – not subject to sudden policy termination.

It’s also worth noting that the authorized representative option involves just one verification (in-person with agent) as compared with the virtual verification option which essentially requires two steps (a virtual and an in-person verification). HR departments looking for tips and tricks on how to successfully setup an authorized representative process should check out our detailed blog here. 

Next Steps for Employers

As I-9 guidance continues to evolve, HR managers must ensure that their own policies and procedures are kept up to date.  At a minimum, employers using the virtual verification path should do the following:

(1) Evaluate whether your organization will continue to use the virtual verification method for new hires and reverifications on or after April 1, 2021. In doing so, employers may wish to re-evaluate the criteria based on ICE’s new “clarified” guidance regarding which employees may qualify.

(2) Consider whether your organization can switch to the authorized representative path, which may involve designating the new hire’s friend or family member to conduct an in-person verification on the employer’s behalf.

(3) Make plans to conduct the physical in-person inspection of all of your previous I-9s that were completed using the virtual verification exception. While the policy remains in effect until at least May 31, the agency may choose to discontinue it in the near future with very little notice.

And remember, you can always drop us a line if you have questions about these new (and evolving) I-9 policies or if we can assist your organization in streamlining your I-9 operations with an intelligent electronic I-9 and E-Verify platform.

About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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