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Employers can continue to use Flexible I-9 Verification Process Until July 19

Today, Immigration and Customs Enforcement (ICE) announced another 30-day extension of their flexible remote I-9 verification process, which was set to expire on June 18. Initially introduced in March of this year, ICE’s so-called “virtual verification” option has been a lifeline for many employers that are still operating remotely due to the COVID-19 pandemic.

In a nutshell, ICE’s flexible I-9 policy allows employers and workplaces operating remotely to conduct a virtual inspection of an employee’s identity and employment authorization documents, rather than meet face-to-face as is normally required under the Form I-9 rules. ICE requires employers to meet with the workers for an in-person verification once normal business operations resume.

As we’ve discussed extensively on this blog, the virtual verification option comes with a few “strings attached.” Specifically, in order to avail themselves of this option, employers must:

  1. Have employees working remotely or otherwise be subject to lockdown protocols (see here for determining if you qualify)
  2. Inspect the employee’s documents remotely (e.g., by video, email, secure upload, etc.)
  3. For new hires, ensure the I-9 is completed (both Section 1 and 2) within 3 days of the employee’s start date
  4. Maintain copies of the documents inspected remotely
  5. Maintain written documentation of the remote onboarding and telework policy for each employee
  6. Write “COVID-19” in the Section 2 Additional Information box or Section 3 (for reverifications)
  7. Ensure that a physical in-person inspection is performed within 3 days after normal business operations resume, and the Form I-9 is updated accordingly

In a separate posting on their COVID-19 resources page, the United States Citizenship and Immigration Services (USCIS) also noted that E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire.

Employers should take note that this is the second extension of the virtual verification policy. Pursuant to the first announcement, the flexible option was set to expire on May 19. The policy was then extended until June 18. This latest announcement specifically notes that ICE will continue to accommodate this flexible policy for an additional 30 days until July 19, 2020.

Will there be further extensions of the virtual verification policy? It’s hard to tell for sure, but clearly the agency is planning for that possibility. At the bottom of today’s announcement, ICE reiterated that DHS will continue to monitor the ongoing national emergency and provide updated guidance as needed. Employers are also required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.

NOI Responses Extended One Final Time

Last but not least, ICE provided another 30-day extension for employers who were served notices of inspection (NOIs) during the month of March 2020 and had not already responded. Employers were previously given an additional 60 days (via the March 20 announcement) and an additional 30 days (via the May 14 announcement). According to today’s notice, this will be the final extension relative to NOIs served by ICE during the month of March 2020.

Additional Guidance Expected

Employers reading this alert will likely have additional questions regarding the virtual verification process, and in particular, the “follow-up” steps which will need to be taken when normal business operations resume. We anticipate that the USCIS may also be updating their FAQs with additional information.

LawLogix is also monitoring the situation too, and we’ll continue to provide timely updates and practice advisories as new information becomes available. In the meantime, please drop us a line if you have questions or if we can assist in helping your organization with I-9 and E-Verify services during these challenging and unpredictable times.

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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