By: Bruce E. Buchanan, Sebelist Buchanan Law

U.S. Immigration and Customs Enforcement (ICE) has placed on its website under “Frequently Asked Questions” some guidance on questions related to I-9 remote virtual verification upon resumption of normal operations.

As you know, on March 19, 2020, due to precautions implemented by employers associated with COVID-19, Department of Homeland Security (DHS) announced it would temporarily defer 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 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.

Question: How should an Employer complete the Form I-9 if the person who examined the Employment Authorization document(s) is not available to conduct the physical inspection?”

ICE’s “Frequently Asked Questions” state: “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, 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 a different employer representative reviewed the documents in person after resumption of normal operations, the USCIS advised writing “COVID-19 Documents Physically examined on (date) by (name)” in Section 2 “Additional Information” field. As you can see, this is contrary to ICE’s guidance.

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.

Why the Difference and What Should an Employer do?

The USCIS is the agency that issues the Form I-9 but ICE is the agency, through Notices of Inspection (NOI), who determines any violations in completing the I-9 form. In my opinion, when in doubt, follow ICE.
But what if the employer has already resumed normal operations and followed USCIS’ guidance because it was the only available guidance and receives an NOI. 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.
Question: What if the Employment Authorization documents used during the remote hire have expired?
ICE’s “Frequently Asked Questions” state: No additional documentation other than the updating of the “additional comments” field is required. This guidance is consistent with the USCIS guidance.

Question: What if the Employment Authorization documents used during the remote hire have been lost?

ICE’s “Frequently Asked Questions” state: The employee should present any combination of a valid List A or List B and C documents and then the Employer should complete the Form I-9 as usual and use the same hire date as the remote hire. The Employer should attach this Form I-9 to the remote hire Form I-9 with a note indicating the original documents were unavailable.

This guidance differs slightly from the original USCIS Q&As. According to the USCIS, if an employee presents a different document at the time of the physical inspection, the employer can either: (1) complete Section 2 on a new Form I-9 and attach it to the Form I-9 used for remote inspection; or (2) provide information about the new document in the “Additional Information field” and write that the employee presented this document at physical inspection.

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, or schedule a consultation with myself or your immigration attorney.