Updated Dec. 17, 2020
As we shared in our previous articles, the Department of Homeland Security (DHS) has made virtual I-9 allowances for employers. Employers are normally required to physically inspect an employee’s documents within three business days of the hire date. Because of the COVID-19 pandemic, DHS has given employers who fit specific guidelines the option to perform a virtual inspection of Form I-9 documents.
U.S. Immigration and Customs Enforcement (ICE) has provided additional guidance for employers who have completed virtual I-9 verifications due to the COVID-19 pandemic. The guidance offers additional I-9 completion instructions for Forms I-9 that were initially reviewed via a virtual inspection under the temporary allowance.
Virtual I-9 Completion
Any I-9s that are completed using the virtual verification option will still need to have Section 2 documents physically inspected within three business days of the expiration of the temporary guidance or within three business days of the business reopening or an employee returning, as defined by the guidelines. Once the in-person review has taken place, employers must note the date of the physical inspection and the person who conducted it. In the most recent guidance ICE answers a few additional questions:
“What if the Employment Authorization (EA) documents used during the remote hire have expired or are lost?
- If the employee is presenting the same EA documents and they were valid at the time of hire, no additional documentation other than the updating of the ‘additional comments’ field is required.
- If the documents are lost or unavailable, have the employee fill out a new Form I-9 and present any combination of a valid List A or List B and C documents. Complete the Form I-9 as usual and use the same hire date as the remote hire. Attach this Form I-9 to the remote hire Form I-9 with a note indicating that the original documents were unavailable.
What if the person who examined the EA documents is not available to conduct the physical inspection?
- 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.”
It’s important to note this is slightly different from the instructions USCIS provided on the Form I-9 Examples Related to Temporary COVID-19 Policies page on the USCIS website. That page states, “If the person who performed the remote inspection cannot also perform the physical inspection, the person who performs the physical inspection should indicate the date they physically examined the documents, as well as their full name and title in the Additional Information field.
Montserrat Miller, a partner and immigration lawyer with the law firm Arnall Golden Gregory “believes that organizations may, depending on the circumstances, complete a new Form I-9 in remote verification situations when the company completes the necessary physical inspection of the document(s) presented by the employee for Section 2 purposes. This would be in lieu of a new Section 2 only, or marking up the original Form I-9.” The organization should also retain the original Form I-9.
Form I-9 Authorized Representatives
The guidance also states that if an employee is currently physically present at a work location, then no exceptions are allowed for the virtual I-9 verification. Additionally, ICE reminds employers they may designate an authorized representative to act on their behalf to complete Section 2.
Attorney Miller recommends that “organizations develop a plan (sooner rather than later) to address how they will handle inspecting employees’ documents whose Form I-9 was completed during the COVID-19 national emergency and who availed themselves of the flexibility allowed by the Department of Homeland Security for remote verification.”
Watch our on-demand webinar, I-9s for Today’s HR, Onboarding in a Virtual World, where we cover this topic and key considerations for management of Section 2, now and in the future.
Equifax Workforce Solutions can help you get your I-9s completed using our nationwide network of I-9 Anywhere trained completers. If you’ve been using the temporary guidance for the virtual I-9 inspections, don’t wait to start completing physical inspection of your I-9s. Get a head start and check out our flexible I-9 Management plans with options for organizations of all sizes.
If you already have an I-9 provider or you are using paper I-9s, it’s no problem. You can leverage I-9 Anywhere as an add-on to your current process. Contact us so we can discuss your needs and help you get started today.
The information provided herein is intended as general guidance and is not intended to convey specific legal advice.