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On November 18, U.S. Immigration and Customs Enforcement (ICE) announced an extension until December 31, 2020 of the policy allowing remote or virtual verification of the documentation required for a Form I-9 when a workforce is working remotely. It is unlikely that this is the last extension.

Originally, on March 19, 2020, due to COVID-19 precautions implemented by employers, the Department of Homeland Security (DHS) announced it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Form I-9 under section 274A of the Immigration and Nationality Act. The original period was to expire on May 19, 2020. Since then, it has been extended on five occasions.

DHS’ 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. The original DHS announcement stated the temporary policy applied as follows:

[O]nly applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9…. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.  

In these situations, employers may inspect the Section 2 documents remotely through a virtual connection (e.g., video link, fax, or email).  Then, employers may enter “COVID-19” as the reason for the physical inspection delay in the Section 2 “Additional Information” field. Additionally, the USCIS advises employers to write “Remote inspection completed on (date).” The exact language to be used at this point seems to be a moving target as it has changed since the initial exception.

Once the National Emergency ends or normal operations resume, which has never been clearly defined by DHS, all employees, who were onboarded using remote verification, must report to their employer within three business days for in-person verification of their identity and employment eligibility documentation for physical inspection of their documentation.

The real interesting question is what will happen when the employer representative who virtually inspected the documents is not available to conduct the physical, in-person inspection/verification.

In late October 2020, ICE stated in its “Frequently Asked Questions”: “Have the employer representative who is conducting the physical inspection complete a new second page (Section 2) of the Form I-9 and attach that to the (complete) remote inspection Form I-9.”

This guidance is contrary to the USCIS, which in June 2020, issued guidance stating if a different employer representative reviewed the documents in person after resumption of normal operations, one should write “COVID-19 Documents Physically examined on (date) by (name)” in Section 2 “Additional Information” field.

Both agencies agree if the same employer representative reviewed the documents remotely and in person after resumption of normal operations, a new Section 2 is not necessary; rather, one should note “COVID-19 Documents Physically examined on (date) by (name)” in Section 2 “Additional Information” field.

A related question is what if the employer has already resumed normal operations and followed USCIS’ guidance because it was the only available guidance and receives an Notice of Inspection (NOI) from ICE. In response to the NOI, the employer should show it was following the only guidance available; thus, it acted in good faith and should not be penalized.

As always, there is continuing confusion in the world of employer immigration compliance. Maybe it will get better in 2021 but don’t count on it.

If you are concerned about your company’s immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available at http://www.amazon.com/dp/0997083379.

Bruce Buchanan is a Partner at Sebelist Buchanan PLLC. Mr. Buchanan is admitted to practice in Tennessee, Georgia, Florida, and Arkansas, and before the U.S. Court of Appeals for the Fifth, Sixth, Eighth, and D.C. Circuit.