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Remote I-9 Inspection Policy Extended Once Again until October 31, 2022

Immigration and Customs Enforcement (ICE) has just announced a six-month extension of their remote I-9 inspection allowance (commonly known as “virtual verification”), providing yet another pandemic reprieve for employers in the US. As a result of today’s extension, employers who are taking physical proximity precautions due to COVID-19 may continue inspecting I-9 documents remotely for their newly hired employees and reverifications of work authorizations until October 31, 2022.

As before, employers must remember that this remote I-9 inspection policy, while convenient, only provides a temporary “deferment” of the in-person requirement in order to help employers onboard their new hires in a safe and efficient manner. As briefly recapped below, the virtual verification policy requires that employers eventually meet with the employee in-person to physically examine those documents.

Virtual Verification Recap

Initially, virtual verification could only be used for employees taking physical proximity precautions where the employer and workplace were operating 100% remotely, with some exceptions –  see here.

More recently, virtual verification can now be used 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.

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).

Speaking of the follow-up requirements, ICE reiterated their prior guidance for employers who are unable to timely conduct an in-person physical document review (for example, when an employee is no longer working at the organization – an increasingly common scenario faced by employers during this “Great Resignation” period). Specifically, ICE advised as follows:

“In such cases, employers may memorialize the reason(s) for this inability in a memorandum retained with each affected employee’s Form I-9. Any such reason(s) will be evaluated, on a case-by-case basis, by DHS ICE in the event of a Form I-9 audit.”


The Virtual I-9 Elephant in the Room

While employers, large and small, will likely appreciate this latest extension, the government has still not indicated how they will manage the eventual end of the virtual verification policy, whenever that occurs.

Immigration practitioners and companies alike have been advocating for a well-defined (and amply notified) winddown period that provides employers with a sufficient amount of time to conduct all of those required physical inspections – particularly for truly remote employees who do not regularly, predictably, or consistently report to work at an employer location.

The government has also received requests to waive the follow-up requirement for these virtually completed I-9s altogether, which would be a very welcome outcome for organizations that are already overburdened with new hire onboarding requirements.

For the time being though, employers should operate under the assumption that they WILL need to conduct these in-person follow-up inspections for any I-9 that was virtually completed, and accordingly, make plans to verify those individuals as soon as practicable.

Organizations should also evaluate whether they will use virtual verification in the future, and explore other options such as the use of an authorized representative, 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.

Paving the Way for a Better (and more Permanent) Virtual Verification Option

Lastly, as previously reported, the government is considering some important (and impactful) changes to the virtual verification policy that would enable employers to remotely inspect identity and work authorization documents without an in-person follow-up requirement. This new “permanent” virtual verification policy would likely include some new employment requirements as well, such as mandatory E-Verify participation, document/image retention requirements, and possibly required DHS training or certification on reviewing identity and work authorization documents.

The government solicited feedback from the public on these ideas last December, and we’re looking forward to hearing more from them sometime this summer.

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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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