Form I-9 compliance is one of the most complex aspects of immigration law. Sadly, it is one of the most violated aspects as well. When the completion of Form I-9 in the context of remote work becomes challenging, it requires extra attention and planning on the part of business owners.

The U.S. Immigration and Customs Enforcement (ICE) had relaxed its rules regarding the in-person inspection of employee documents related to Form I-9, and a few weeks ago an extension of the relaxation until May 31, 2021 was announced by the agency.

Here’s everything you need to know about the relaxed rules and the Form I-9 compliance requirements for remote workers.

Background

On 20th March 2020, the Department of Homeland Security (DHS) announced interim guidelines to temporarily ease I-9 compliance for employers operating remotely due to the COVID-19 pandemic. This policy permitted qualifying employers to review documents virtually or accept copies of documents. However, the agency had not provided an extension of the requirements to complete the review of documents (virtually or physically) by the 3rd business day following the date of employment.  Since then, ICE has been issuing several extensions to the virtual guidance, with the latest one currently set to expire on March 31, 2021. And, in one of its latest announcements, the agency declared an extension of the relaxation until May 31, 2021. The continued flexibility offered to employers is in response to the national emergency owing to which employees still work on a remote basis.

The current flexibility extension

The current extension includes guidance for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. ICE states that “those employees are provisionally exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the INA 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”.

Several immigration experts opine that the current extension is a significant change from ICE’s prior announcements. It is noted that until now, the relaxed rules applied only where workplaces are shut down, or where new hires and employees needing to update temporary work authorizations are subject to quarantine or no-travel orders. As per the latest announcement, anyone hired to exclusively work remotely due to COVID-19 can provide acceptable documents remotely and will not have to physically show their documents until they get back to regular non-remote work, or until the policy is dismissed by ICE.

Form I-9 Requirements during Remote Work

In accordance with the requirements for remote I-9 verification, employers should make a note of the following points and abide by them:

• There is no difference in the timing for filling out Form I-9. New hires must fill out Section 1 of the I-9 on or before the date of hire. The employee’s documents must be reviewed, and Section 2 must be completed, no later than three business days of the date of hire.

• When it comes to remote document review, it should be remembered that the documents can be provided electronically, by scan, fax, or by video meeting.

• Do not forget that the employee can choose which document(s) to provide, whether from List A OR a combination of documents from List B and List C.

• An employer may designate an authorized representative to act on its behalf to complete Section 2 and they should review the document(s) provided and confirm that the documents are genuine and relate to the employee.

• The employer’s representative should enter the details of the document(s) reviewed on page 2 of the I-9, and fill out, sign, and date the Certification on page 2.

• The representative should also enter “COVID-19” in the Additional Information field on page 2 of Form I-9. Refer to the sample provided by USCIS.

• Those employers that use the remote document inspection method are required to visually inspect, in person, those documents presented virtually by the employee once they return to “normal operations.” This needs to be done within 3 business days.  

• USCIS elucidates that as employers return to normal operations, employees who presented document(s) remotely and who are working remotely do not have to be called into the workplace just to undergo physical document inspection. However, if the employee is called in to work for another reason or reasons (meetings, training, etc.), then the in-person document review should be done.

• If the original employer representative who examined the document(s) remotely is no longer employed or otherwise unavailable to conduct the in-person document inspection, the new employer representative conducting the in-person inspection should fill out a new page 2, Section 2, and attach it to the original I-9.

• If one or more of the document(s) has expired since the original remote I-9 was completed, so long as the document was valid at the time the original I-9 was created, it remains an acceptable document.

• If the document(s) viewed remotely is/are lost or unavailable for in-person inspection, the employee should complete a new I-9 and present the documents the employee wishes. The employer representative should indicate the same hire date as shown on the original I-9, and attach the new I-9 to the original one. The employer representative should indicate in the Additional Information field that the new I-9 was completed because the original documents were unavailable.

• Refer to the examples provided by USCIS on how employers should notate the application of this exception to the Form I-9s as well as the physical inspection of the original documents in the employee’s physical presence which must occur within 3 days following an employer’s return to “normal operations”.

Who is an Authorized Representative?

As per the guidance issued by ICE, employers may designate any person as an authorized representative so long as that person meets in-person with the employee, reviews their original documents, and completes and signs Section 2. It adds that employers are also responsible (and liable) for any issues with the Form I-9 completion. Hence, employers are cautioned to develop a compliant procedure for selecting and designating an appropriate representative in the process of remote I-9 verification, and thereby implement a policy that will meet the requirements of ICE auditors.

Some experts suggest the use of remote I-9 centers for document verification, thus providing the new hires with the convenience of an I-9 center located near their home. Several employers are implementing a policy that allows their newly hired employees to visit a friend or colleague to complete the I-9 verification process. As you give them the choice, you must remember to provide the new hire with clear and explicit instructions (for the authorized representative) which outlines the steps for reviewing documents and completing Section 2 of the I-9. Upon completion of the process, the employer has to review the I-9 (and any supporting documents) for accuracy and sufficiency.

Review of Remotely Completed I-9s

Employers have been repeatedly reminded that they are ultimately responsible for any mistakes or omissions on the I-9 (regardless of who they might choose as the authorized representative). Though clear and effective instructions can help you avoid such issues, special attention needs to be paid to ensure your remotely completed I-9s are error-free.

Some of the common mistakes which can occur include the acceptance of wrong documents, missing or transposed document information, and the failure to retain photocopies of the documents (when required by the organization or E-Verify). To identify and rectify these issues, employers should establish a defined review process for all remote I-9s completed out in the field. When reviewing the forms, see to it that the section 1 and 2 information is correctly entered, and the additional information is properly included. Be wary of other issues, such as similar handwriting in sections 1 and 2, presence of notary seal, fax header, etc. that have the potential to make the auditor suspect the information you provide.

SHRM draws on the suggestions of immigration attorneys and compliance experts, and asks employers to :

• Make sure to keep a list of all employees who were verified virtually, when they will be returning to work, and the deadline for their in-person verification.
• Determine who will conduct the in-person verifications and how and when they will be reaching out to the affected employees.
• Train staff on how to update I-9 forms after the in-person review.

Employers are also suggested to consider using an authorized representative due to the major benefit that it is a single-step process, as opposed to the virtual process, which requires a subsequent in-person verification.

The bottom line

As employers can decide if they want to use the virtual completer verification I-9 process, they should confirm that they are eligible to do so. The ones that have been using the virtual verification policy need to make certain that the virtual completions are tracked accurately, the form I-9s are completed timely, and E-Verify services are used when required. Besides this, the physical copies of the paper Form I-9s are to be obtained. Make sure you keep track of the websites of the regulatory authorities for updates regarding the compliance requirements.

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