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ICE Extends Flexible I-9 Rules in Light of Ongoing COVID-19 Concerns

As businesses across the US wrestle with the decision of how (and when) to bring their employees back into the workplace, one thing is now clear – employers may continue to use the so-called “flexible” process for completing I-9s remotely for a little while longer as COVID-19 continues to be a concern for many.

This news comes courtesy of a short announcement yesterday from Immigration and Customs Enforcement (ICE), informing the public that they are extending their flexible Form I-9 process for an additional period of thirty (30) days.

As we’ve discussed extensively on this blog, ICE’s so-called “virtual verification” option allows employers to conduct a remote verification (or reverification) of an employee’s documents, followed by an in-person verification when normal business operations resume. In order to avail themselves of this option, employers must:

  1. Have employees working remotely or otherwise be subject to COVID-19 lockdown protocols (see our guidance here)
  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 their remote onboarding and telework policy for each employee
  6. Write “COVID-19” in the Additional Information box or Section 3 as applicable
  7. Ensure that a physical in-person inspection is performed within 3 days after normal business operations resume, and the I-9 is updated accordingly

ICE initially announced this flexible policy on March 20, 2020, and it was set to expire on May 19, 2020. Under the new extension, employers operating remotely may continue to use this flexible I-9 process for new hires until June 18, 2020.

Employers should also keep in mind that virtual verification is not the only game in town. As previously discussed, DHS has long permitted employers to use authorized representatives for remotely hired (or reverified) workers. Using an authorized representative has several distinct advantages over virtual verification, not the least of which is that it’s a “permanent” option that is not subject to change or termination.

Interested in using authorized representatives (aka remote agents) for I-9 completion? Read our blog here for strategies and best practices. Then, check out our guide for implementing a remote I-9 standard operating procedure.

NOI Responses Extended as Well

This latest ICE announcement also indicates that employers who were served notices of inspection (NOIs) during the month of March 2020 are provided an additional 30 days to respond as well (on top of the 60 days already provided pursuant to the prior notice). This is surely welcome news for some employers, as there was a noticeable spike in NOIs right before the country entered into COVID-19 lockdown mode.

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. At the very end of their notice, ICE indicates that they are continuing to monitor the ongoing national emergency, and will provide updated guidance as needed.

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 trying 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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