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ICE extends virtual I-9 vacation for employers through the end of summer 2021

During the past couple of weeks, HR managers across the US have been staring at their I-9 files, with a look of worry painted across their faces. Granted, for many employers this is nothing new as I-9s are often considered a ticking time bomb of liability if not completed correctly.

But this time around, the concerned looks had to do with the potential ending of a popular COVID era government policy known as virtual verification, which was set to expire on May 31, 2021. Would the government extend the policy again? Or would they follow on the coattails of the CDC and signal a return to normalcy?

What is Virtual Verification?

Initially launched in March 2020, the virtual verification allowance enables employers with remote operations to defer the physical document inspection requirements associated with the Form I-9, and instead examine the documents remotely, using video, email, fax, etc. Employers need to meet certain requirements (discussed below), with the understanding that they will eventually meet with the employee in-person once normal operations resume and/or the program ends.

And therein lies the rub for thousands of employers who have availed themselves of the virtual verification policy. According to the government’s original memo, once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification.

Now imagine you’re an employer who has onboarded hundreds (maybe even thousands) of new hires using virtual verification. And then being asked to arrange a physical inspection for each one of those individuals within 3 short days. Perhaps “look of worry” was too mild a description…

ICE Provides Relief

But HR managers can once again breathe a deep sigh of relief, because today, the US Immigration and Customs Enforcement (ICE) announced yet another extension of the virtual verification allowance – providing employers with an additional 90 days to use the program, which is now set to end on August 31, 2021.

That’s right folks – virtual verification is here for the summer! This means that employers can continue inspecting documents remotely for their newly hired employees as long as those individuals are working remotely due to COVID-19. ICE also repeated their “new” guidance (previously announced in March 2021) on how employers can determine whether an employee would qualify for the exception.

Specifically, employees who work exclusively in a remote setting due to COVID-19-related precautions are temporarily exempt from the I-9 physical inspection requirements until they undertake 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.

Last week, the United States Citizenship and Immigration Services (USCIS) provided a bit more clarity on this revised virtual verification policy by noting that “an employer’s entire staff is no longer required to work virtually for the employer to use temporary flexibilities.”

Virtual Verification Steps

If you have new hires (or existing employees requiring reverification) that fall into the remote category described above, you can continue to use virtual verification as long as you also observe the following additional requirements:

  1. For new hires, ensure the I-9 is completed (both Sections 1 and 2) within 3 days of the employee’s start date
  2. For reverifications, ensure Section 3 is completed before the employee’s work authorization expires
  3. Maintain copies of the documents inspected remotely
  4. Maintain written documentation of the remote onboarding and telework policy for each employee
  5. 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)

But Don’t Forget the Physical Inspection!

Although virtual verification is here to stay until August 31, 2021, employers should begin the physical inspection process for their “backlog” of virtual I-9s as soon as it is safe to do so. If ICE decides to end the policy on August 31, employers may have very little notice (and time) to complete all of those physical inspections and I-9 updates described above.

Employers wishing to do so will need to plan out their verification process carefully and decide exactly how they will conduct the physical inspection and annotate the I-9. At a high level, employers may follow one of these paths:

(1) If the physical inspection is conducted by the same individual who examined the documents remotely and signed Section 2, the individual can simply write the date they physically examined the documents and then add their initials in the Additional Information box in Section 2 of the virtually completed I-9.

(2) If the physical inspection is conducted by someone else (including an authorized representative), the employer has a choice to make. According to the USCIS guidance, the individual should write the date they physically examined the documents as well as their full name and title in the Additional Information box in Section 2 of the I-9. However, according to ICE guidance, the individual should complete a new second page (Section 2) of the Form I-9 and attach that to the (complete) remote inspection Form I-9.

Why the conflicting instructions? According to an ICE representative, they want the verifier to read and attest to the Form I-9 certification in Section 2, which is best accomplished by having the individual complete and sign the form. Meanwhile, USCIS took a much simpler approach, requiring only that the verifier write-in their name and title.

Employers may also choose to complete an entirely new Form I-9 for the physical inspection to ensure consistency of the data between Sections 1 and 2. Although not mentioned in the ICE 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. The employer will also want to add a short note explaining why the additional I-9 was created – namely, to record the physical inspection.

Conclusion

Today’s announcement from ICE was welcome news for many, but HR managers must prepare for the eventual end of the program.  At a minimum, employers using the virtual verification path should do the following:

(1) Evaluate whether your organization will continue to use the virtual verification method for new hires and reverifications on or after June 1, 2021. In doing so, employers may wish to re-evaluate the criteria based on ICE’s new “clarified” guidance regarding which employees may qualify.

(2) Consider whether your organization 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.

(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 August 31, the agency may choose to discontinue it in the near future with very little notice.

Need help with your remote I-9s? Please drop us a line if you have questions or if we can assist in helping your organization manage its Form I-9 and E-Verify responsibilities.


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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