Form I-9 Remote Review Extended Through Summer 2021

Employers may want to start in-person verifications soon, attorney warns

Roy Maurer By Roy Maurer June 2, 2021
HR woman at desk

​An interim policy allowing employers to inspect Form I-9 documents virtually has been extended through Aug. 31.

U.S. Immigration and Customs Enforcement (ICE) first issued the policy in March 2020 due to the COVID-19 pandemic and it has been extended several times.

The provision initially applied only to employers and workplaces that were operating completely remotely because of the public health crisis, but ICE has recently been offering more flexibility for companies that are bringing employees back to the office, according to Dawn Lurie, senior counsel in the immigration practice group of Seyfarth Shaw's Washington, D.C., office.

Lurie pointed out that the agency's latest announcement has "nothing new to note," other than the extended policy deadline. She added that the response to HR's most burning question—whether an organization's entire staff is required to work virtually to take advantage of the virtual review—has not changed since the last updated guidance. Employers may use remote Form I-9 procedures for new hires working remotely, even if other employees are working at the employer's premises.

"Since March 2020, companies that have been operating remotely have been able to inspect Section 2 Form I-9 documents virtually, over video link, by fax or via e-mail," said Amy Peck, an attorney in the Omaha, Neb., office of Jackson Lewis. "In April 2021, the Department of Homeland Security clarified that in-person inspection applied only to employees who report to work at a company location on a 'regular, consistent or predictable basis.' "

The normal timelines for I-9 completion remain in effect. Section 1 of the form must be completed by the employee's start date, and Section 2 must be completed within three business days of the start date. Employers taking advantage of the relaxed procedures must provide written documentation of their remote onboarding and telework policy to each employee.

"While it is good to have this additional three-month break, we still do not know when ICE will terminate this flexibility," Peck said. "Once it happens, there will likely be a rush to conduct in-person verification and reverification within three business days."

For that reason, she suggested that employers consider starting to conduct in-person verifications for those hired and verified remotely on or after March 20, 2020. "This can be done as employees return to the worksite or it can be conducted by agents selected by the employer," Peck said. "An employer may select any individual as an agent for verification purposes, but the employer will remain responsible for any errors in that process."

In preparation for in-person document inspection, employers should have maintained a list of all employees who were verified virtually, when they will be returning to work and the deadline for their in-person verification.

HR should decide who will conduct the in-person verifications, how and when they will be reaching out to the affected employees, and how to update the forms after the in-person review.

The ICE guidelines related to virtual review are not mandatory. Employers can still follow standard Form I-9 procedures, including using authorized representatives to complete verification on the employer's behalf.

"Employers should strongly consider using authorized representatives for remotely hired and reverified employees," Lurie said. "The authorized-representative method serves as a significant timesaver if correctly crafted and implemented carefully. The Form I-9 is completed just one time, documents are verified just that one time, and there's no need for the two-step mandate created by the virtual process, which requires a subsequent in-person verification," she said.



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