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ICE Extends Virtual I-9 Verification Policy Once Again Until August 19

In the time of COVID-19, HR departments and I-9 compliance managers across the US are getting used to a new recurring routine. Every month, usually around the first or second week, they begin to wonder about the status of the so-called virtual I-9 verification option. Will it be extended for another 30 days? What do we do if the policy suddenly expires?

Announced by ICE approximately 4 months ago, virtual verification is a special, temporary policy which enables remote employers to conduct a “virtual” inspection of an employee’s identity and employment authorization documents, rather than meet in-person as is normally required under the Form I-9 rules. Employers are then required to conduct a physical inspection of the documents once “normal business operations resume” – a phrase which many find to be exceedingly nebulous, considering that nobody really knows what is truly “normal’ these days.

What we do know is that ICE intends virtual verification to be a temporary thing. Under their initial announcement, the policy was put in place for a period of 60 days OR within 3 business days after the termination of the National Emergency, whichever comes first.

Since then, the agency has issued a series of 30-day extensions, the latest of which was just announced today (although back-dated to 7/18). Per ICE’s memo, employers may continue to use the virtual verification process for their newly hired workers until August 19, 2020.

Virtual Verification Recap

As we’ve discussed extensively on this blog, the virtual verification option comes with a few “strings attached” that should be considered by any HR department looking to utilize this path to complete I-9s or conduct reverifications. Here is what you need to know (some of which has been modified from our last blog).

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

  1. Have employees working remotely or otherwise be subject to lockdown protocols (see our blog here for determining if you qualify)
  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 Sections 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 the remote onboarding and telework policy for each employee
  6. Write “Remote inspection completed on xx/xx/xxxx” in the Section 2 Additional Information box or Section 3 for reverifications (the specific language here is new – see our blog here for more information)
  7. 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

Is Virtual Verification a Good Policy?

For some organizations, virtual verification has been a life-line during a particularly turbulent and unpredictable hiring season. Employers operating remotely can safely onboard their new employees without risking the safety and health of the HR department and the newly hired workers themselves. Employers using electronic I-9 systems, in particular, have quickly adapted to the virtual process using helpful tools such as employee document capture and upload, COVID-19 follow-up tracking, and advanced reporting.

Other 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.

No Further Extensions for Notices of Inspections

As they announced last month, there will be no additional extensions granted to employers who were served notices of inspection (NOIs) by ICE during the month of March 2020. Employers were previously given an additional 60 days (via the March 20 announcement), an additional 30 days (via the May 14 announcement), and a final 30 days (via the June 16 announcement). This means that if you were served an NOI in the month of March, your deadline to turn over I-9s has likely already passed (or will be reached very soon).

When will the virtual verification policy end?

As they have done in prior alerts, ICE noted that they will “continue to monitor the ongoing national emergency and provide updated guidance as needed.”

Translation: this policy may very well be extended again in 30-days, depending upon the state of the country with respect to the COVID-19 pandemic.

In addition, ICE notes that “[E]mployers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.”

Translation: For the foreseeable future, HR departments will continue to play the monthly guessing game (will it stay…or will it go) with respect to virtual verification.

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 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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