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Employers can continue to virtually examine I-9 documents through the End of 2020

Approximately eight months ago, Immigration and Customs Enforcement (ICE) implemented what felt like a truly novel (dare I say, unprecedented) relaxation of the Form I-9 rules in response to the COVID-19 pandemic. For the first time ever, employers were permitted to review identity and work authorization documents of their newly hired employees “virtually”, as long as certain requirements were met.

March now seems like an eternity ago, but at the time, ICE emphasized that this would be a temporary loosening of the rules – available initially for only 60 days OR within 3 business days after the termination of the National Emergency, whichever came first. Sadly, the COVID-19 pandemic (and resulting national emergency) have continued unabated, and ICE has accordingly extended this flexible I-9 policy on six separate occasions (culminating with today’s press release).

Employers relying upon virtual verification can once again breathe a sign of relief, as ICE has announced that the policy will remain in effect for the rest of the year, ending on December 31, 2020.

Virtual Verification Recap

As we’ve discussed extensively on this blog, the virtual verification option comes with a few “strings attached” that should be considered by any HR department looking to utilize this path to complete I-9s or conduct reverifications. Here is what you need to know.

In order to use virtual I-9 verification, employers must:

  1. Have employees working remotely or otherwise be subject to lockdown protocols (see our blog here for determining if you qualify)
  2. Inspect the employee’s documents remotely (e.g., by video, email, fax, etc.)
  3. For new hires, ensure the I-9 is completed (both Sections 1 and 2) within 3 days of the employee’s start date
  4. For reverifications, ensure Section 3 is completed before the employee’s work authorization expires
  5. Maintain copies of the documents inspected remotely
  6. Maintain written documentation of the remote onboarding and telework policy for each employee
  7. Write “Remote inspection completed on xx/xx/xxxx” in the Section 2 Additional Information box or Section 3 for reverifications
  8. 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 (more on that below).

How should the Form I-9 be updated when a physical inspection occurs?

As previously discussed, the USCIS published a series of Form I-9 mockups in June that illustrate how employers should annotate the Form I-9 in a variety of scenarios, including when conducting the subsequent physical examination of documents. In doing so, the USCIS imagined two different scenarios:

  • The physical inspection is conducted by the same individual who examined the documents remotely and signed Section 2 or
  • The physical inspection is conducted by a different person – typically, this might be an authorized representative

In the first instance, USCIS instructs the verifier to write the date they physically examined the documents and then add their initials in the Additional Information box in Section 2. In the second (and perhaps more common) scenario, USCIS instructs the verifier to write the date they physically examined the documents as well as their full name and title in the Additional Information box in Section 2.

That’s the USCIS guidance in a nutshell. But then, last month, we learned of an important update from immigration compliance attorney Dawn Lurie, who unearthed some “hidden” guidance from the depths of the ICE website. And this document, which includes FAQs on how to conduct and manage the required physical inspection process, actually contradicts the USCIS guidance on updating I-9s when the inspection is conducted by a different individual.

Specifically, ICE notes in their FAQ that if the person who examined the I-9 documents is not available to conduct the physical inspection, the employer representative who is conducting the physical inspection should complete a new second page (Section 2) of the Form I-9 and attach that to the (complete) remote inspection Form I-9.

While ICE does did not provide any reasoning for this contradictory instruction, one highly plausible theory is that the agency wants the new verifier to read and sign the Section 2 attestation under penalty of perjury (rather than merely entering their name and title in the Additional Information box as instructed by USCIS).

Whatever the reason, employers now clearly have a decision to make with regards to how to update I-9s when a physical inspection is conducted by a different individual.

(1) Follow the USCIS guidance and simply have the individual write their name and title in the Additional Info box; or
(2) Follow the ICE guidance and complete a brand new Section 2.

There may be other approaches as well – for example, employers may choose to complete an entirely new Form I-9 for the physical inspection to ensure consistency of the data between Sections 1 and 2 (which may be important if the employee has changed status since the virtual I-9 was originally completed). Although not mentioned in the DHS guidance, completing a new I-9 in this scenario should be permissible so long as the employer follows this process without regard to an employee’s citizenship status, immigration status, or national origin. When in doubt, definitely speak with your immigration counsel.

When will the virtual verification policy end?

As they have done in prior alerts, ICE noted today that they will “continue to monitor the ongoing national emergency and provide updated guidance as needed.”

Translation: this policy may very well be extended again as we begin the new (and hopefully better) year, depending upon the state of the country with respect to the COVID-19 pandemic.

In addition, ICE notes that “[E]mployers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.”

Translation: For the foreseeable future, HR departments will continue to play the monthly guessing game (will it stay…or will it go) with respect to virtual verification.

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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