How to Update I-9 Forms for Remote Hires

​Editor's Note: This interim policy has been extended through Dec. 31.

Long-awaited instructions from Immigration and Customs Enforcement (ICE) for updating I-9 forms for hires made virtually during the coronavirus pandemic are now online.

Employers with remote workforces have known that physical inspection of documents was expected to take place within three business days after employees start returning to the worksite, but questions remained about the proper way to update the forms.

ICE had announced on March 20 interim guidelines to temporarily ease I-9 compliance for employers operating completely remotely as a result of the public health crisis. Under the guidance, employers were authorized to complete the Section 2 verification process remotely, relaxing the rule mandating an in-person review of work eligibility and identification documents. Several extensions to the guidance have been issued since then, with the latest one currently set to expire Nov. 19. Once normal business operations begin, employers who completed I-9s virtually will need to inspect documents in person and update the forms.

Immigration attorney Dawn Lurie, senior counsel in the immigration practice group at Seyfarth in Washington, D.C., who alerted SHRM Online to the guidance, discussed the two most pressing questions employers have had about updating their remotely reviewed I-9 forms.

SHRM Online: What if the employment authorization documents used during the virtual review have expired or are lost?

Lurie: ICE says that if the employee is presenting the same, but expired, documents and they were valid at the time of hire, no additional documentation is required other than entering "COVID-19" as the reason for the physical inspection delay in the Additional Information Box. Employers should also notate "documents physically examined on [date of physical inspection] by [the name of the person who conducted the examination]."

If the employee's documents are lost or unavailable, have the employee fill out a new Form I-9 and present any combination of a valid List A or List B and C documents. Complete the form as usual, use the same hire date as the remote hire, and attach the new Form I-9 to the remote hire form with a note indicating that the original documents were unavailable. This I-9 should be linked to the original I-9 if using an electronic I-9 system. 

It's important to remember to allow the employee to present his choice of existing or new documents at the in-person inspection.

SHRM Online: What if the person who originally examined the documents is not available to conduct the in-person physical inspection?

Lurie: ICE instructs the employer representative conducting the physical inspection to complete a new Section 2 of the form and attach that to the remotely inspected form. This is a little different from the examples USCIS originally released in June, which stated that if a different person performed the physical inspection, that person should just write their name, title and date of inspection in the information field on the original form. While ICE does not outline the reasoning behind the new Section 2, it stands to reason that a new reviewer of the employee's documents requires a full attestation, completed under penalty of perjury, where an employer representative certifies they have examined the documents and that the documents appear to be genuine and relate to the employee. For employers that have already started updating I-9s, after returning to work, decisions will need to be made on whether to rely on the original example for these already-completed forms. We know that ICE and USCIS are working together on these issues and we expect they will be reasonable in any compliance-related reviews. 

Considering limitations with electronic I-9 systems and other logistical issues, it stands to reason that a new I-9 versus a new Section 2 only should also be acceptable where the person who examined the original documents is not available to conduct the physical inspection. Assuming that the mandate for a new I-9, rather than a Section 2 only, is implemented by companies across the board, we don't expect it to be an issue.

SHRM Online: What else does the new ICE guidance say?

Lurie: ICE suggests that only updated in person I-9s will be reviewed for late-completion-related violations by stating "Any government audit of subsequent Forms I-9 would use the in-person completed date" as a starting point for these employees only but time will tell.

It seems reasonable to assume that ICE will be cognizant of the difficult situations faced by companies during COVID-19 in the years to come. ICE also reminded employers that they can use an authorized representative to act on their behalf to complete Section 2.

SHRM Online: Are there any other things SHRM members should consider?

Lurie: I think it would be wise to start to move away from the virtual model, where possible. It would also be prudent to start completing in-person document reviews for those employees who initially completed their I-9s virtually, if possible. At some point the government will end the virtual policy. After that it's likely they will also request that companies, even those that have not resumed normal business operations, find a way to have the I-9s updated. In this case the authorized representative model can be used or arrangements for visits with company representatives will need to be considered.