ICE Extends Form I-9 Flexibility

Roy Maurer By Roy Maurer January 5, 2021
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Update: ICE has extended permission for remote Form I-9 document review until March 31.

U.S. Immigration and Customs Enforcement (ICE) extended its interim policy allowing virtual document-inspection methods for Form I-9 until Jan. 31.

The provision applies only to employers and workplaces that are operating completely remotely because of the public health crisis. The policy was initially issued March 20 and has been extended six times.

"The 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," said Bruce Buchanan, an attorney and founding partner at Sebelist Buchanan Law in Nashville, Tenn., and Atlanta. He is co-author of The I-9 and E-Verify Handbook (Alan House Publishing, 2017). "It is unlikely that this is the last extension."

ICE first announced relaxed rules for physically inspecting new hires' identity and employment eligibility documents back when employers were beginning to deal with COVID-19-related orders to shelter in place and work from home, said Dawn Lurie, senior counsel in the immigration practice group of Seyfarth Shaw's Washington, D.C., office. The guidance allows companies to review the I-9 form's Section 2 documents virtually—over video link, by fax or by e-mail, for example—within three business days of the worker's start date, she said.

Previous articles from SHRM Online provide information about ICE's flexibility and what HR should do once employees begin returning to the workplace.

"Once normal operations resume—which has never been clearly defined by ICE—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," Buchanan said.

John Fay, president of the LawLogix division of Hyland Software, a company that specializes in cloud-based I-9, E-Verify and immigration compliance services, explained that in order to use the virtual I-9 verification method, employers must:

  • Ensure that I-9s for new hires are completed within three days of the employee's start date.
  • Ensure that Section 3 of the form for reverifications is completed before the employee's work authorization expires.
  • Maintain copies of the documents inspected remotely.
  • Maintain written documentation of the remote onboarding and telework policy for each employee.
  • Write "Remote inspection completed on xx/xx/xxxx" in the form's Section 2 Additional Information box or in Section 3 for reverifications.
  • Update the form once a physical in-person inspection is performed.

"For some organizations, virtual verification has been extraordinarily helpful," Fay said. "Employers operating remotely can safely onboard their new employees or reverify existing ones without risking the safety and health of the HR department and the newly hired workers themselves. Employers using electronic I-9 systems, in particular, have quickly adapted to the virtual process using helpful tools such as employee document capture and upload, COVID-19 follow-up tracking, and advanced reporting."

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

"The authorized representative path—which may include the new hire's friend or family member—has a lot of advantages over virtual verification, not the least of which is the fact that it's always an available option for employers and not subject to sudden policy termination," Fay said. "It's also worth noting that the authorized representative option involves just one verification as compared with the virtual verification option which essentially requires two steps."

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