U.S. Immigration and Customs Enforcement (ICE) has extended its temporary policy allowing employers to inspect Form I-9 documents virtually through Dec. 31.
The policy was first issued in March 2020 due to the COVID-19 pandemic and it has been extended 11 times.
The Society for Human Resource Management (SHRM) has been advocating for extending the policy through the end of the year as well as urging the agency to implement a permanent policy permitting virtual I-9 inspection.
"Under the virtual verification framework, employers who are operating remotely can postpone the in-person physical inspection of documents that normally happens when completing the Form I-9," said John Fay, an immigration attorney and president of the LawLogix division of Hyland Software, a company that specializes in cloud-based I-9, E-Verify and immigration case management services. "Employers may instead examine documents remotely via e-mail, fax, secure upload, etc., and complete the I-9 with appropriate annotations."
Fay said that the policy has been a lifesaver during an uncertain time, allowing employers to onboard employees quickly and safely.
The policy initially applied only to employers and workplaces that were operating completely remotely because of the public health crisis, but since April, ICE has been offering more flexibility for companies that are bringing employees back to the office. Even though there seems to be some fuzziness about who exactly is covered under the policy, experts believe that employers may use remote Form I-9 procedures for new hires working remotely, even if other employees are working at the employer's premises.
The normal timelines for I-9 completion remain in effect. Section 1 of the form must be completed by the employee's start date, and Section 2 must be completed within three business days of the start date. Employers taking advantage of the relaxed procedures must provide written documentation of their remote onboarding and telework policy to each employee.
"But the policy comes with a very big string attached—namely, that the employer must eventually meet up with the employee to see those documents in-person," Fay said. "Under their original policy, ICE noted that once an employer's normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days to present their documents for in-person inspection."
Fay added that since April, ICE has stated that employees are temporarily exempt from the physical inspection process until they undertake non-remote employment on a "regular, consistent or predictable basis."
Amy Peck, an attorney in the Omaha, Neb., office of Jackson Lewis, noted that there's no way to know for sure when the flexibility to review documents virtually will end, and once that happens, "there will likely be a rush to conduct in-person verification and reverification within three business days."
For that reason, she suggested that employers consider starting to conduct in-person verifications for those hired and verified remotely on or after March 20, 2020. "This can be done as employees return to the worksite or it can be conducted by agents selected by the employer," Peck said. "An employer may select any individual as an agent for verification purposes, but the employer will remain responsible for any errors in that process."
SHRM also asked ICE to issue additional clarifying guidance for the eventual wind-down of the flexibility policy, to include a reasonable timeframe of no less than 90 days to review documents in-person.
In preparation for in-person document inspection, employers should have maintained a list of all employees who were verified virtually, when they will be returning to work and the deadline for their in-person verification.
HR should decide who will conduct the in-person verifications, how and when they will be reaching out to the affected employees, and how to update the forms after the in-person review.
The ICE guidelines related to virtual review are not mandatory. Employers can still follow standard Form I-9 procedures, including using authorized representatives to complete verification on the employer's behalf.
"Employers should strongly consider using authorized representatives for remotely hired and reverified employees," said Dawn Lurie, senior counsel in the immigration practice group of Seyfarth Shaw's Washington, D.C., office. "The authorized-representative method serves as a significant timesaver if correctly crafted and implemented carefully. The Form I-9 is completed just one time, documents are verified just that one time, and there's no need for the two-step mandate created by the virtual process, which requires a subsequent in-person verification."
Making Virtual Review Permanent
SHRM wrote to the Department of Homeland Security (DHS) in late July, asking the department to consider a permanent rule allowing a virtual inspection model for use in completing Section 2 of the Form I-9 by video conference. "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," said Emily M. Dickens, chief of staff, head of government affairs and corporate secretary at SHRM. "Just as important is the ability for high-volume employers and companies with growing remote workforces to be relieved from the burdens associated with in-person inspection."
SHRM raised additional areas to consider related to employment verification, including:
In May 2021, SHRM surveyed its members on their experience with Form I-9 compliance requirements and the employment verification process. Eighty percent of HR professionals find both the Form I-9 and E-Verify burdensome to use, according to the survey.
With many employers shifting to remote operations for the first time in 2020, many new challenges related to employment verification were introduced. About 38 percent of respondents said they conducted I-9s virtually for all new hires since the pandemic began; 26 percent used a hybrid model of using an authorized representative and virtual review; 24 percent did not alter their I-9 process; and 7 percent used an authorized representative exclusively.
When asked how challenging they think it will be for their organization to obtain, inspect and retain copies of documents collected during the remote work period within a three-day timeframe once the ICE policy is ended, 71 percent of employers surveyed said it would be somewhat or very challenging to do so.
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