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Remote I-9 Inspection Policy Extended through the end of 2021

Down to the wire, US Immigrations and Customs Enforcement (ICE) just posted another extension of their flexible Form I-9 inspection policy for employers operating remotely as a result of COVID-19. By virtue of today’s announcement on the ICE website, employers in the US may continue using the so-called “virtual verification” I-9 process for their newly hired employees and reverifications of work authorizations (as required) until December 31, 2021.

If this news sounds familiar, it’s likely because this is the ELEVENTH extension of a policy that was initially intended to be a brief and temporary respite for employers during the pandemic. Under the virtual verification framework, employers who are operating remotely can postpone the in-person physical inspection of documents that normally happens when completing the Form I-9. Employers may instead examine documents remotely (via email, fax, secure upload, etc.), and complete the I-9 with appropriate annotations.

For many organizations, the policy has been a lifesaver during a time of great disruption and uncertainty – allowing them to onboard employees quickly (and safely).  And pursuant to ICE’s revised eligibility requirements (first implemented in April 2021), an employer can use the virtual verification process for any new hire as long as they will work exclusively in a remote setting due to COVID-19-related precautions.

But the policy comes up with a very big string attached – namely, that the employer must eventually meet up with the employee to see those documents in-person. Under their original policy, ICE noted 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. A very short timeline indeed.

More recently, ICE has clarified that employees are temporarily exempt from the physical inspection process 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.

This means that employers using virtual verification have a remote inspection deadline that is both certain and fuzzy – dictated by individual circumstances (when or if an employee returns to the workplace) and the duration of the virtual verification program itself.

As coronavirus cases continue to rise in the US (and employers adjust their return-to-work protocols accordingly), there does not seem to be a clear end in sight for the I-9 virtual verification framework. But at the same time, employers using virtual verification cannot afford to simply wait and see what the government will do, especially when you consider the amount of work (and scheduling) involved in performing the physical inspection process.

Virtual Verification Best Practices

In light of the uncertainty regarding virtual verification (i.e., it’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. In doing so, employers will want to use ICE’s new “clarified” guidance regarding which employees may qualify.
  2. For organizations with a remote workforce, 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.
  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 December 31, 2021, the agency may choose to discontinue or alter the program 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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