By: Bruce E Buchanan, Sebelist Buchanan Law



On August 18, 2020, the U.S. Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) announced another extension of allowing remote or virtual verification of the documentation required for a Form I-9 when a workforce is working remotely. Due to the continued precautions related to COVID-19, the DHS has decided to extend this policy once again. It is unknown if this is the last extension. However, ICE added this proviso to their announcement:
Going forward DHS will continue to monitor the ongoing national emergency and provide updated guidance as needed. Employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.
The temporary policy was originally put in place for the period of March 20, 2020 until May 19, 2020. Since then, it has been extended by 30 days on four occasions, including this extension, which lasts until September 19, 2020.

On March 19, due to precautions implemented by employers and employees associated with COVID-19, DHS announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act. This policy only 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, Employment Eligibility Verification. This provision, as explained in the original guidance, was implemented for a total of 60 days, and was set to expire on May 19.

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 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., over 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 normal operations resume, 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.

Two months ago, the USCIS issued guidance on completing the Form I-9 upon return to normal operations in “Form I-9 Examples Related to Temporary COVID-19 Policies” on its I-9 Central page. If the same employer representative reviewed the documents remotely and in person after resumption of normal operations, the USCIS advises writing “COVID-19 Documents Physically examined on (date) by (name)” in Section 2 “Additional Information” field.

If a different employer representative reviewed the documents in person after resumption of normal operations, the USCIS advises writing “COVID-19 Documents Physically examined on (date) by (name)” in Section 2 “Additional Information” field. However, it is unclear whether ICE will accept this scenario in an ICE Notice of Inspection/Audit of an employer’s Forms I-9. An employer may want to take the safer option and have a new Section 2 completed and attached to the Form I-9.

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.