By: Bruce E Buchanan, Sebelist Buchanan Law



On September 15, 2020, the U.S. Immigration and Customs Enforcement (ICE) announced another extension of allowing remote or virtual verification of the documentation required for a Form I-9 when a workforce is working remotely. For the first time, the extension is for 60 days, not 30 days, until November 19, 2020. It is unknown if this is the last extension but judging from the expansion to 60 days for the extension, it is unlikely.

Originally, on March 19, 2020, due to precautions implemented by employers and employees associated with COVID-19, 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 by 30 days on four occasions. This is the first 60-day extension.

This policy only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location. 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: 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 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.

Three 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.