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Flexible I-9 Rules Extended Once Again, until March 31, 2021

U.S. Immigration and Customs Enforcement (ICE) has once again extended their remote I-9 inspection policy (to March 31, 2021) as COVID-19 continues to impact businesses of all sizes across the United States.

Originally implemented in March of last year, ICE’s remote inspection policy enables employers who are operating remotely to defer the in-person physical inspection of documents that normally happens when completing the Form I-9. Employers may instead examine documents remotely (via email, fax, secure upload, etc.), as long as certain requirements are met.

Those requirements, however, can be a bit confusing. In the original guidance, ICE noted that the remote inspection process was only for employers and workplaces that are operating remotely. ICE noted that if there are employees physically present at a work location, no exceptions are being implemented at this time.

However, they left the door slightly ajar, by indicating 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. Last year, we wrote a short blog analyzing this issue for employers who are still confused by whether or not they can take advantage of this leniency.

Employers also need to figure out when to perform the follow-up physical inspection that is required under the policy. In their original memo, ICE noted that once “normal operations resume,” all employees who were onboarded using remote verification, must report to their employer within three business days to present their documents for in-person inspection.

Which of course begs the question – what exactly do they mean by normal operations? Are we talking pre-COVID normal where employees are working at their usual workspaces? Or post-COVID new normal where many employees will likely continue to work from home? Thus far, ICE has declined to provide further guidance or instruction regarding normal operations – which they agree is a rather nebulous concept.

LawLogix will continue to monitor this situation very closely and provide further updates once received from ICE or USCIS. In the meantime, employers can continue to use the virtual verification option for new hires and reverifications until March 31, 2021. Here is a recap of the requirements:

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

  1. Have employees 100% working remotely or otherwise be subject to lockdown protocols
  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 (the USCIS recommends specific language – see our blog here for more information)
  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.

Don’t forget option 2 – the Use of Authorized Representatives

While virtual verification can sound very appealing, many organizations have opted to go a different route, and use authorized representatives (which may include the new hire’s friend or family member) to conduct an in-person verification on the employer’s behalf. 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) 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. 

And remember, you can always 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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