By Bruce Buchanan
May 25, 2022
On April 25, 2022, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced a six-month extension until October 31, 2022, of the policy allowing remote or virtual verification of the documentation required for a Form I-9 when a workforce is working remotely. It is unlikely that this extension will be the last one.
This policy began on March 19, 2020, when due to COVID-19 precautions, DHS announced it would exercise discretion to defer the physical presence requirements associated with the Form I-9 pursuant to the Immigration and Nationality Act (INA). The original period was to expire on May 19, 2020. Since then, it has been extended on numerous occasions.
DHS’s temporary policy defers for employers the requirements 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 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.
In this extension as well as several previous extensions, DHS/ICE relaxed the definition of a remote employee and stated:
If employees hired on or after April 1, 2021 work exclusively in a remote setting due to COVID-19 related precautions, they are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the INA 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.
Once the National Emergency ends or normal operations resume, a term that has never been clearly defined by DHS, all employees, 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. I, along with many other immigration attorneys, continue to believe that DHS will ultimately realize this three-day rule will be impossible for many employers to reach; thus, it will either scrap it or modify it. This belief is buttressed by DHS requesting comments on a possible permanent virtual I-9 verification process.
However, DHS stated in its recent extension, “Employers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.”
During an in-person physical inspection, the Employer must note on Section 2 of the Form I-9 as stated below. USCIS and ICE advise if the same employer representative reviewed the documents remotely and in person after resumption of normal operations, one should note “COVID-19 Documents Physically examined on (date) by (name)” in Section 2 “Additional Information” field. However, if the person who virtually examined the Employment Authorization document(s) is not available to conduct the physical inspection, ICE’s advice is “Have the employer representative who is conducting the physical inspection complete a new second page (Section 2) of the Form I-9 and attach that to the (complete) remote inspection Form I-9.”
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. This may mean the use of a family member, to conduct an in-person verification on behalf of the employer. One advantage of using authorized representatives is that 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. However, a disadvantage is the greater possibility of errors if the authorized representative is not properly trained.
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 at http://www.amazon.com/dp/0997083379.
