Attorneys recommend organizations that have to update hundreds—sometimes thousands—of remotely completed I-9s should create an action plan that includes communication and training.
Employers that began conducting virtual employment eligibility verifications during the pandemic should begin physical inspections of completed I-9 forms as soon as possible in anticipation of the Aug. 30 deadline.
U.S. Immigration and Customs Enforcement (ICE) announced that the pandemic-era flexibility extended to the Form I-9 process is coming to an end July 31, followed by a 30-day grace period to comply with physical Form I-9 document inspection requirements. This means employers that were conducting the I-9 process virtually over the last three-plus years will be required to conduct a physical inspection of original documents related to those prior remote I-9 completions by Aug. 30.
"Since March 20, 2020, there has been an exception to the in-person I-9 verification requirements, allowing documentation to be virtually reviewed for certain remote employees," said Amy Peck, an attorney in the Omaha, Neb., office of Jackson Lewis. "For at least a year, the Department of Homeland Security and immigration attorneys have been encouraging employers who have been using the temporary flexibility to prepare for the end of that program. The White House announced that the COVID-19 Public Health Emergency would end on May 11, so this announcement is not wholly unexpected. Now, with less than three months to go, all employers must prepare for compliance."
Having an Action Plan
First, employers will need to identify all the I-9 forms requiring updates, said Dawn Lurie, senior counsel in the immigration practice group of Seyfarth's Washington, D.C., office. "How you do this depends upon how your company stores I-9s—paper or electronically—and how you organize your system. Hopefully, you've been tracking your completed 'COVID' I-9s from the start."
Lurie recommended creating an action plan that includes:
- Communicating with the entire workforce, outlining timing for compliance, and setting repercussions for not cooperating.
- Deciding whether to perform the physical inspection of documents at the worksite or use an offsite third-party authorized representative to complete in-person inspections.
- Training employees on conducting the physical document inspections and how to update I-9 forms. "Ensure they are aware of the nuanced rules surrounding documents not found on the List of Acceptable Documents and automatic extensions of employment authorization documents," she said. It's also important to remember that employees can present their choice of eligible identity and work authorization documents when updating the forms—they do not need to present the same documents they initially presented.
The virtually completed I-9s should have been annotated in the Additional Information field with "COVID-19" as the reason for the delayed in-person inspection, Peck said. "This must be updated by annotating 'documents physically examined' with the accurate date and the name of the person who conducted the review in Section 2 of the I-9."
Lurie said that how you update your I-9 forms will depend on whether you use paper I-9s or an electronic I-9 system. "Each electronic I-9 vendor, hopefully, offers a specific workflow to update COVID I-9s," she said. "Companies using electronic I-9s should work with their vendor to understand how to identify remote COVID I-9s in the system, confirm a workflow exists to update these remote COVID I-9s with a physical inspection and ensure the system tracks the completion of updates to remote COVID I-9s."
Future of Virtual Review Is Uncertain
ICE plans to publish a final rule later this year that would clarify when alternatives to in-person inspection of identity and employment authorization documents in the Form I-9 process are permissible. A proposed rule was published in August 2022.