In March 2020, due to the shift to remote work during the COVID-19 pandemic, U.S. Immigration and Customs Enforcement (ICE) introduced temporary flexibility in rules for I-9 compliance. In summary:
- Employers with remote employees need not review the employee’s identity and employment authorization documents in the employee’s physical presence for Form I-9.
- Employers may first inspect Section 2 documents remotely (e.g., by video, fax or email) and “obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.”
- Upon resuming normal business operations, the employer must inspect the documents and note in the “additional information” field “COVID-19” as the reason for the delay and add “documents physically examined” with the date of inspection.
- The original policy required all employees onboarded using remote verification to report to their employer within three business days to present their documents for inspection once the employer resumed normal business operations. A subsequent ICE revision stated employees are temporarily exempt from the physical inspection process until they undertake nonremote employment on a “regular, consistent or predictable basis.”
- The original policy applied only to employers operating completely remotely, but as of April 2021, employers may use remote I-9 procedures for new hires working remotely even if other employees are onsite.
Virtual document examination allowed employers to onboard employees quickly and safely during the pandemic without employees stepping foot in an office. ICE has since extended remote review permissions many times, with the most recent extension allowing employers the continued flexibility through April 2022. Even though this deadline is quickly approaching, many experts agree the temporary verification flexibility allowed during the pandemic should become permanent along with other changes to modernize the I-9 verification process.
The Society for Human Resource Management (SHRM) has been advocating for ICE to implement a permanent policy permitting virtual I-9 inspection. In May 2021, a SHRM member survey revealed widespread dissatisfaction with current I-9 operations. Nearly half (48%) of those surveyed said compliance with the current I-9 process is “burdensome.” 30% said both the I-9 and E-Verify process are burdensome. The respondents supported many suggested improvements to the I-9 form and process including:
- 46% supported removal of the requirement to update List B expired documents regardless of state requirements.
- 65% supported permanent revocation of the ICE mandate to review documents in person by changing definition of “physical inspection” to include video conference.
- 50% supported simplified Form I-9 completion instructions.
Some respondents offered their own suggestions to modernize the I-9 process including:
- Additional time to complete Forms I-9 in the event of mergers, acquisitions and restructuring.
- Inclusion of receipts, temporary documents and auto extension information to the list of acceptable documents.
- Updates to I-9 violations that consider electronic I-9 issues.
In July 2021, Emily M. Dickens, SHRM Chief of Staff, Head of Government Affairs and Corporate Secretary, submitted a letter to the Department of Homeland Security requesting the implementation of a permanent rule or policy permitting a virtual inspection model for completing I-9s. Ms. Dickens stated, “Removing the in-person requirement is critical to ensure the health, safety, and welfare of HR professionals mainly tasked with completion of the Form I-9.” Among SHRM’s requests to modernize the process included:
- Creating a simplified Form I-9 with updated instructions that include a new “List of Acceptable Documents” chart that shows alternative acceptable documents and allows for flexibility in the wake of unexpected issues (e.g., a global pandemic).
- Integrating the Form I-9 and E-Verify process into a single process for employers required to or that voluntarily use E-Verify.
- Issuing public guidance on electronic I-9 systems highlighting issues that result in a non-compliant system.
The Department of Homeland Security is listening to those in favor of modernizing the process and, in October 2021, published a request for information seeking comments from employers on their use of remote verification options, what technology was used and possible technological difficulties conducting I-9 inspections during the last 19 months of the pandemic. Of particular concern to DHS is data security and fraud prevention, given it may be more difficult to catch fake documents inspected virtually than in person. ICE has announced a proposed regulation to be published in the summer of 2022 that may set forth rules for permanent remote document inspection like those currently in place.
Interim I-9 Best Practices
With DHS interested in determining how successful the temporary I-9 verification procedures have been, many theorize changes are coming in the summer of 2022. Until that time, here are some best practices to help employers navigate the current I-9 verification process landscape and prepare for possible impending changes.
- Comply with current inspection requirements as employees return to work. Employers should maintain a list of employees whose I-9 documents were inspected virtually, their return to work date and the deadline for their in-person verification.
- Determine who will conduct the in-person verifications and formulate a timeline for reaching out to the affected employees with information on presenting in-person documents. Employers may select any authorized representative as an agent for verification purposes.
- Ensure employees conducting in-person verifications understand how to update the Form I-9 after the in-person verification.
- Research technological solutions such as cameras that would be used for virtual verifications.
- Consider how to safely and securely store I-9 documents reviewed remotely. Back and forth emails containing these documents isn’t secure, and alternative methods should be employed.
Get Smart HR
If you’ve been conducting I-9 verifications remotely during the pandemic, do you have a plan in place for reinspecting I-9 documents in person? Have you communicated the plan to employees? Is your current technology adequate and secure for virtual I-9 inspections? Do you have one authorized representative conducting I-9 verifications instead of several employees who may not be consistently complying with the requirements? If you feel you could use some guidance on I-9 verification practices or an I-9 audit to ensure you are in compliance, Smart HR can help. Call today.
