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ICE Extends I-9 Virtual Verification through May 31, 2021

On March 31, 2021, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension until May 31, 2021 of the policy allowing remote or virtual verification of the documentation required for a Form I-9 when a workforce is working remotely.

This policy began on March 19, 2020, when due to COVID-19 precautions implemented by employers and employees, 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 (INA). The original period was to expire on May 19, 2020. Since then, it has been extended on eight occasions with the last several extensions being for more than a month. It is unlikely that this is the last extension.

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.

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, a term 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 physical verification of their identity and employment eligibility documentation. However, in this extension, DHS/ICE has added information for those employees hired on or after April 1, 2021. In this situation,  if these new employees work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the physical inspection requirements associated with the Form I-9 until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.

Th question at that point is how an Employer should complete the Form I-9 at the time of in-person physical inspection. Both USCIS and ICE agree if the same employer representative reviewed the documents remotely and in person after resumption of normal operations, one should note “COVID-19 Documents Physically examined on (date) by (name)” in Section 2 “Additional Information” field.

However, if the person who virtually examined the Employment Authorization document(s) is not available to conduct the physical inspection, then there appears to be a difference of guidance from the two agencies. ICE has stated “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.” In June 2020, the USCIS did not state a new Section 2 is needed, which is contrary to ICE’s guidance.

Since ICE is the agency who will decide if an employer commits substantive violations for which a fine may be assessed, I advise following ICE’s guidance.

If a company is looking for an alternative to remote or virtual verification of the I-9 documentation, one may want to consider the use of authorized representatives, which may even mean use of a family member, to conduct an in-person verification on behalf of the employer. One advantage of the use of authorized representatives is it involves only one step – an in-person verification, as opposed to virtual verification, which requires two steps, a virtual verification and later an in-person verification.

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.