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Guest Blog: Hidden ICE Guidance On Virtual I-9s

Buried within the Immigration and Customs Enforcement (ICE) website is seemingly recent guidance regarding how to update “virtual” Forms I-9 after companies return to “normal business operations.” While it’s unclear when the guidance was actually published, we have been predicting an update to the U.S. Citizenship and Immigration Services (USCIS) Form I-9 Examples Related to Temporary COVID-19 Policies released in late June and further updated on July 27. So the fact that this guidance is now appearing comes as no surprise.

By way of background, on March 20, 2020, the Department of Homeland Security (DHS) announced interim guidelines to temporarily ease I-9 compliance for employers operating remotely as a result of the COVID-19 pandemic. ICE has since issued several extensions to the “virtual” guidance, with the latest one currently set to expire on November 19. Under this guidance, employers are authorized to complete the Section 2 verification or Section 3 re-verification process remotely, relaxing the USCIS Form I-9 instructions mandating an in-person review of work eligibility and identification documents. ICE expects the worksite to be 100% remote to utilize the relaxed guidance. This exception, therefore, is not available when employees are physically present at an employer’s work location.

As we have discussed in prior blog postings, virtual I-9 completion is a “two-touch” process. Physical inspection must take place within three business days after normal operations resume. While “normal operations” have not yet been defined by the government, we expect that individual companies – not the government – will define the resumption of “normal operations.” Accordingly, we continue to recommend that businesses memorialize decisions, including “phase-ins” and other timelines, individual employee anomalies, and any related protocols adopted relating to the timing of returning to work.

How Do We Complete Forms I-9 After Returning to Work?

The discrete placement of the new guidance appears to be a simple oversight by the public affairs division of ICE who should have dropped it squarely on the ICE homepage. Instead the Supplemental Guidance was published under the ICE Worksite Enforcement webpage, and is not currently linked under the Employment Verification (I-9) section of the ICE Guidance on COVID-19 page. Fortunately, we were able to locate the buried Frequently Asked Questions which outline how to address two very specific scenarios and also provide additional COVID-19 related I-9 information to employers.

In what further sharpens, and in some areas contradicts, the USCIS’s prior guidance, ICE offers the following:

Question 1. What if the Employment Authorization (EA) documents used during the remote hire have expired or are lost?

Answer 1aEXPIRED: If the employee is presenting the same EA documents and they were valid at the time of hire, no additional documentation other than the updating of the “additional comments” field is required.

Seyfarth Commentary: This guidance is in line with the original USCIS guidance. ICE states that if the List A or List B and C documents are the same, then the employer should follow the USCIS’s prior guidance regarding “updating of the additional comments.” Specifically, USCIS directed the employer to physically examine the original identity and work authorization documentation in the presence of the employee, and then update the Form I-9 by entering in the Additional Information Box “COVID 19” as the reason for the physical inspection delay. The employer was also directed to notate “documents physically examined on [date of physical inspection] by [the name of the person who conducted the examination].” Interestingly the updated ICE guidance implies in this example that the person completing the in-person, physical inspection, is the same as the person who completed the Form at the initial virtual completion. If it’s not the same person, then we suggest that the employer follow the instructions outlined in Q2 below, addressing a new I-9 completer. 

Answer 1bLOST. If the documents are lost or unavailable, have the employee fill out a new Form I-9 and present any combination of a valid List A or List B and C documents. Complete the Form I-9 as usual, and use the same hire date as the remote hire, attach this Form I-9 to the remote hire Form I-9 with a note indicating that the original documents were unavailable.

Seyfarth Commentary: While this guidance follows the USCIS reminder to allow the employee to present his choice of existing or new documents at the in-person inspection, the recommended course of action differs from the original USCIS Q&As published in June. According to the USCIS, if an employee presents a different document at the time of physical inspection, the employer can either: 1. complete Section 2 on a new Form I-9 and attach it to the Form I-9 used for remote inspection; or 2. provide information about the new document in the Additional Information field and write that the employee presented this document at physical inspection. DHS expressed a preference for completing a new Section 2 as a best practice.

Meanwhile, this new ICE guidance instructs employers to complete a new Form I-9, meaning that both Section 1 and Section 2 should be completed in order to record the new documents. While we may be overthinking it, ICE’s direction to complete the new I-9 makes sense because it forces the person viewing the documents to complete the Certification Block.

Certification: I attest, under penalty of perjury, that (1) I have examined the document(s) presented by the above-named employee, (2) the above-listed document(s) appear to be genuine and to relate to the employee named, and (3) to the best of my knowledge the employee is authorized to work in the United States.

The employee’s first day of employment (mm/dd/yyyy):                     (See instructions for exemptions)

Question 2. What if the person who examined the EA documents is not available to conduct the physical inspection?

Answer 2. Have the employer representative who is conducting the physical inspection complete a new second page (Section 2) of the Form I-9 and attach that to the (complete) remote inspection Form I-9.

Seyfarth Commentary: While in line with Seyfarth’s seemingly conservative, yet consistent guidance, these instructions differ significantly from the June USCIS examples in stating: “If the same person performs both the remote and subsequent physical inspections, complete as shown. Note that if a different person performs the physical inspection, that person should write their full name and title, instead of their initials.” While ICE does not outline the reasoning behind the new Section 2, similar to above, it stands to reason that a new reviewer of the employee’s documents requires a full attestation, completed under penalty of perjury, where an employer representative certifies they have examined the document(s) and that the document(s) appear to be genuine and relate to the employee. For employers who have already started updating I-9s, after returning to work, decisions will need to be made on whether to rely on the original USCIS guidance for these already-completed forms.

A further review of the two FAQs, illustrates additional inconsistency. Notably Q1 calls for a new Form I-9 and Q2 mentions only a new Section 2. In light of limitations with electronic I-9 systems and other logistical issues, it stands to reason a new I-9 (vs. a S2 only) should also be acceptable where the person who examined the original documents is not available to conduct the physical inspection. Seyfarth attorneys intend to seek clarification from all agencies involved including ICE, USCIS and the Department of Justice’s Immigrant and Employee Rights Office (IER).

What Else Does the new ICE Guidance Say?

ICE answers other outstanding questions including whether or not there would be fines for completing virtual I-9s late as well as the second step of completing in-person I-9 three days after “normal operations” begin. ICE states: “Any government audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.” This suggests that only updated I-9 will be reviewed for late completion related violations. Even here, it seems reasonable to assume that ICE will be cognizant of the difficult situation faced by companies during COVID-19 in the years to come.

Timing for I-9s

ICE also reminded employers that virtual or remote completions are not available to all companies, “[i]f an employee is currently physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.”

Authorized Representatives… yay or nay?

As we have continued to do in our blogs, ICE reminded employers to consider using Authorized Representatives in lieu of virtual I-9s: “Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign the Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.”

Designating an authorized representative to complete I-9s on a company’s behalf has become extremely common during COVID-19. When correctly crafted, implemented and audited, this option may be considered more attractive than the traditional in-person HR review of I-9 related documents. Since the start of COVID-19, the Seyfarth Compliance Team has been creating authorized representative models with the appropriate safeguards in place. Our models include utilizing Friends & Family (F&F) members to complete Section 2 of the Form I-9.

Anyone considering the use of an authorized representative should consider all the implications carefully with counsel as the actions of the representative are imputed on the company. Compulsory post-verification completion audits are also recommended and should be part of any F&F method. Finally, employers should consider electronic I-9 vendors that offer options to have third parties and/or F&F log on to complete Section 2 of an individual’s Form I-9 directly without full access to the company’s I-9s. The better systems have errors and omissions technology that assist both the employee and the F&F with completing the I-9.

There is no perfect science in advising on COVID-19 I-9 completion in these uncertain times. Carefully considering options, weighing risk, deciding how much you are comfortable with, and then executing a plan that has safeguards and training built in, is generally a reasonable plan of action.

For questions regarding these policy changes, I-9 compliance, defending employers involved in worksite enforcement audits or actions, E-Verify compliance, LCA and H-1B compliance and DOJ anti-discrimination matters, contact the Seyfarth Immigration Compliance and Enforcement Group or the author, Dawn M. Lurie, directly at dlurie@seyfarth.com.

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