Remote I-9 Form Verification Extended 60 Days

HR should be ready for in-person review once extensions end

Roy Maurer By Roy Maurer September 16, 2020
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Editor's Note: This interim policy has been extended through Dec. 31.

Employers with entirely remote workforces as a result of the COVID-19 pandemic have until Nov. 19 to take advantage of relaxed document inspection requirements for the Form I-9 when onboarding new hires.

U.S. Immigration and Customs Enforcement (ICE) announced that it was extending its interim policy allowing virtual inspection methods for another 60 days. The policy was initially issued March 20 and has been extended four times. The most recent extension was due to end Sept. 19.

"It is unknown if this is the last extension … but it is unlikely," said Bruce Buchanan, an attorney in the Nashville and Atlanta offices of Sebelist Buchanan Law and co-author of The I-9 and E-Verify Handbook (Alan House Publishing, 2017).

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

Buchanan said that in situations where employers inspect Section 2 documents remotely, the reviewer may enter "COVID-19" as the reason for the physical inspection delay in the Section 2 "Additional Information" field. Additionally, employers can write "Remote inspection completed on (date)."

Amy Peck, an attorney in the Omaha, Neb., office of Jackson Lewis, reminded employers that the policy applies only to those workplaces that are in fact operating completely remotely. The accommodation does not apply to organizations where some employees still physically report to a work location, a stipulation that has caused confusion and concern for HR.

"The latest announcement states that if any employees are physically present at the worksite, in-person physical inspection of the I-9 documentation must occur," Peck said. "In past announcements, however, ICE has indicated that it would use a case-by-case analysis to determine if the virtual I-9 review was reasonable. How and whether ICE will be reasonable is yet to be seen."

Virtual document inspection is not mandatory, and employers may continue to follow standard Form I-9 procedures for remote hires, including designating authorized representatives to act on their behalf and review documents in person.

"Due to the complicated and time-consuming nature of the virtual process, many employers opted to use the authorized representative method, allowing friends and family members of the employee to complete the section on their behalf," Lurie said. "The friends-and-family process was also implemented by companies that had new hires onsite but absent or scaled-down HR teams. Implementing the process should not be taken lightly, however; it should be carefully planned, executed and, most importantly, audited."

[SHRM members-only toolkit: Complying with I-9 and E-Verify Requirements in the United States]

Returning to Normal

Virtual review is not expected to continue indefinitely, nor does ICE intend to waive the in-person review requirement once businesses return to the worksite, Lurie said.

Once the virtual review extensions come to an end, all employees who were onboarded using remote verification must report to HR within three business days for in-person verification of their identity and employment eligibility documents for physical inspection, said Jason Fry, vice president at Equifax Workforce Solutions, which manages I-9 processing. "I think the risks are either that employers may forget or have a sizable backlog that they will have to deal with very quickly when the temporary guidance expires," Fry said. "Even if an employer is using I-9 management software, which can help track the Form I-9s that will need to be revisited, every single new hire that has been onboarded under the temporary guidance will have to have their Section 2 documents physically inspected either before or quickly after the temporary rules expire. For some employers that's a handful, for others it could be hundreds."

Fry said that employers should prepare for the in-person document review by training HR staff on how to properly update the form and making sure that there are enough authorized representatives available to physically meet with employees and review documents.

Peck at Jackson Lewis added that ICE may significantly increase worksite audits as soon as employers start reopening. "It is important to have a plan for reinstituting normal I-9 processes and making a good-faith effort to comply," she said.

She recommended:

  • Ensuring that there is an accurate list of all employees whose I-9 verification or reverification was conducted remotely.
  • Notifying all those employees to bring their documents to the appropriate staff member within three business days of their return to the office. "Be careful not to discriminate or engage in document abuse by requesting specific documents," Peck said.
  • Creating a return-to-work I-9 policy that describes what was done and when. "This policy will be a defense against an ICE claim that the company could have completed physical inspections sooner or faster than it did," she said.

Some aspects of annotating the form once employees return to the worksite are still not entirely clear. "For example, the scenario where the person performing the required physical inspection is different than the original I-9 completer," Lurie said. "Here, [the agency] simply advised that the person who performs the physical inspection should indicate the date they physically examined the documents, as well as their full name and title in the additional information field. Or the scenario of recording a different set of documents during physical inspection. Remember, the employee is not bound to bring in what he or she originally presented."

In both situations, attorneys recommended completing an entirely new Section 2 and attaching it to the original form. "This suggestion is rooted in the belief that ICE will want to ensure that the certification is completed by the person who physically viewed the original documents," Lurie said.



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