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ICE brings holiday cheer, extending remote I-9 flexibilities through April 30, 2022

Yesterday, Immigration and Customs Enforcement (ICE) announced a four-month extension of their highly popular remote I-9 inspection allowance for employers taking precautions due to the COVID-19 pandemic.

By my count, it’s the twelfth such extension we’ve seen since ICE first implemented the so-called “virtual verification” policy in March of 2020 at the height of the pandemic. Employers may continue inspecting documents remotely for their newly hired employees and reverifications of work authorizations until April 30, 2022.

Virtual Verification Overview

As many HR representatives are keenly aware, the I-9 document inspection process remains one of the few onboarding tasks that must still be completed “in-person” with the newly hired employee. That’s because ICE and its sister agency, USCIS, have long interpreted the regulations to require an in-person tactile review of the identity and employment authorization documents.

But that was before the country was facing a raging (and persistent) health-related pandemic. As they say, desperate times call for desperate measures, and so the agencies agreed to “relax” their strict document verification rules for remote employers operating 100% remotely due to COVID – allowing a remote inspection of the I-9 documents by video, email, or fax.

However, ICE made it very clear that this was merely a “deferment” of the in-person requirement, noting that once an employer’s “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. ICE declined to define what “normal operations” meant, and as the pandemic worsened and employers adapted, “normal” was far from anyone’s thought processes.

In recognition of this dilemma (and other complications), ICE relaxed the program even further in April 2021 by changing the criteria for determining when a remote employee can be considered exempt from the I-9 physical inspection requirement. Specifically, employers can now 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. This is true even if other employees are physically present in the workplace.

And with regards to the in-person follow-up, ICE further clarified that employers do not need to conduct the physical inspection until the given employee undertakes “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.”

Virtual Verification Requirements

Employers using virtual verification must also adhere to the following requirements (described in ICE’s original policy and subsequent USCIS updates):

  1. Develop and maintain written documentation of the remote onboarding and telework policy
  2. Adhere to the standard I-9 timing requirement, which for new hires,  means ensuring that the I-9 is completed (both Sections 1 and 2) within 3 days of the employee’s start date, and for reverifications, ensuring Section 3 is completed before the employee’s work authorization expires
  3. Inspect the documents remotely using video, email, fax, or similar methodology (e.g., secure upload)
  4. Maintain copies of the documents inspected remotely
  5. Write “Remote inspection completed on xx/xx/xxxx” in the Section 2 Additional Information box or Section 3 for reverifications
  6. Keep track of all I-9s that have been completed using virtual verification to ensure the required follow-up (physical inspection)
  7. Once the virtual verification policy ends OR an employee commences non-remote employment on a regular, consistent, or predictable basis (whichever is earlier), coordinate the in-person meeting and physical inspection of the document(s)
  8. Annotate the Form I-9 to record the physical inspection (see here for our cheat sheet).

The Future of Virtual Verification – Request for Feedback

As previously reported, ICE and USCIS are considering making virtual verification a “permanent” policy and removing the follow-up physical inspection requirement altogether. Employers are invited to visit the Federal eRulemaking Portal (https://www.regulations.gov/document/USCIS-2021-0022-0001) to submit comments and suggestions on the virtual verification process. Employers must provide their feedback by December 27, 2021.

Virtual Verification Best Practices

In light of the uncertainty regarding virtual verification’s long-term viability, employers using this method should consider the following plan of action:

(1) Evaluate whether your organization will continue to use the virtual verification method for new hires and reverifications until its current deadline in April 2022. As part of this process, you’ll want to consider the amount of work involved (remember, it’s a “2-step” process) and alternatives.

(2) For organizations on the fence, consider whether you 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. See here for best practices.

(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 April 30, 2022, the agency may choose to discontinue or alter the program in the near future with very little notice.

Have questions about this alert? Please drop us a line. And if you’d like to learn more about the Guardian Electronic I-9 and E-Verify system which simplifies and standardizes I-9 compliance, you can contact us here.


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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