January 28, 2021
On January 28, 2021, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension until March 31, 2021 of the policy allowing remote or virtual verification of the documentation required for a Form I-9 when a workforce is working remotely.
Originally, on March 19, 2020, due to COVID-19 precautions implemented by employers and employees, DHS announced it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Form I-9 under section 274A of the Immigration and Nationality Act (INA). The original period was to expire on May 19, 2020. Since then, it has been extended on seven occasions with this extension being for two additional months. It is unlikely that this will be the last extension.
DHS’ temporary policy defers the requirements for employers to review Form I-9 documents in person with new employees where employers and workplaces are operating totally remotely due to COVID-19.
In these situations, employers may inspect the Section 2 documents remotely through a virtual connection (e.g., video link, fax, or email). Then, employers may enter “COVID-19” as the reason for the physical inspection delay in the Section 2 “Additional Information” field. Additionally, the USCIS advises employers to write “Remote inspection completed on (date).” The exact language to be used at this point seems to be a moving target as it has changed since the initial exception.
Once the National Emergency ends or normal operations resume, which have never been clearly defined by DHS, all employees, who were onboarded using remote verification, must report to their employer within three business days for in person physical verification of their identity and employment eligibility documentation.
If a company is looking for an alternative to remote or virtual verification of the I-9 documentation, one may want to consider the use of authorized representatives, which may even mean use of a family member, to conduct an in-person verification on behalf of the employer. One advantage of the use of authorized representatives is it involves only one step – an in-person verification, as opposed to virtual verification, which requires two steps, a virtual verification and later an in-person verification.
In prior blog posts, I have discussed the inconsistent directions of ICE and the USCIS concerning what will happen when the employer representative who virtually inspected the documents is not available to conduct the physical, in-person inspection/verification. Employers and their legal counsel should read this post.
If you are concerned about your company’s immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available here on Amazon.
Bruce Buchanan is a Partner at Sebelist Buchanan PLLC. Mr. Buchanan is admitted to practice in Tennessee, Georgia, Florida, and Arkansas, and before the U.S. Court of Appeals for the Fifth, Sixth, Eighth, and D.C. Circuit.
