U.S. Immigration and Customs Enforcement (ICE) has announced that it is extending until May 31, 2021 its relaxed enforcement of the normal requirement to physically inspect the original documents presented by new hires during the I-9 process and thus allow eligible employers to continue to implement remote I-9 verification in certain circumstances during the COVID-19 emergency. ICE has also introduced a variation of the remote I-9 policy for employees who are hired on or after April 1, 2021 and are working remotely due to COVID-related precautions.
Employers who are eligible for and elect to use the remote I-9 policy will be able to inspect Section 2 documents remotely, by video, fax or email, and must retain copies of the documents. The ordinary timelines for I-9 completion remain in effect. Section 1 of the I-9 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 these relaxed procedures must provide written documentation of their remote onboarding and telework policy to each employee.
Remote I-9 policies for employees hired on or after April 1, 2021
Employers may use remote Form I-9 procedures for employees who are (1) hired on or after April 1, 2021; and (2) are working fully remotely as a COVID-19 precaution, even if the employer has employees working non-remotely at the employer’s premises. For these new hires, employers are no longer required to have all employees working remotely in order to use the remote I-9 accommodation – a departure from the agency’s pre-April 1, 2021 policy. However, the employer is required to use standard I-9 procedures for new hires who are working non-remotely on a “regular, consistent, or predictable basis.”
If an eligible new hire completes the I-9 process remotely on or after April 1, the employer is not required to inspect the employee’s I-9 documentation in person until the earlier of (1) three days after the employee begin working non-remotely on a regular, consistent, or predictable basis; or (2) within three days after the COVID-19 emergency has ended or ICE has terminated the remote policy. ICE reminds employers that they can begin physical inspection of affected employees’ documents earlier than this timeframe in the employer’s discretion. Employers must ensure that they implement such an inspection practice in a consistent and non-discriminatory manner across the workforce.
The pre-April 1 interim policy and its limits
For employees onboarded between March 20, 2020 and March 31, 2021, employers were permitted to use the interim I-9 accommodations for employees working remotely due to COVID-19, but only if the workplace was operating entirely remotely, with no employees physically reporting to the work location. Once normal operations resume, employers who adopted this practice must be prepared to inspect the documents of affected employees within three days. As noted above, employers can begin physical inspection of documents of affected employees earlier than this timeframe in the employer’s discretion. Such an inspection practice must be implemented in a consistent and non-discriminatory manner across the workforce.
Considerations for employers
Employers may continue to follow standard Form I-9 procedures, including the use of third-party agents to complete verification on the employer’s behalf. Employers who are weighing whether to adopt or continue remote I-9 procedures should consider the following:
- The remote I-9 accommodation can be cumbersome. Employers may prefer to use or resume using standard I-9 procedures for their new hires and reverifications, which include using offsite third-party agents to inspect employee documents and complete Form I-9 on the employer’s behalf.
- Employers who use the remote I-9 accommodation will be required to physically inspect the documents of affected employees no later than three days after normal operations resume. This means employers may have a very limited window in which to inspect the documents of large numbers of employees.
- If your organization used or uses remote I-9 procedures, consider beginning physical inspection of the documents of affected employees earlier than the deadlines prescribed by ICE. If your organization adopts this practice, it must be implemented consistently and in a non-discriminatory manner.
- Though the remote I-9 policy and its expansion give employers some welcome flexibility during the COVID-19 emergency, employers must be aware that it is not clear how ICE will enforce the remote policy. Among other issues, the agency has not defined “fully remote work” or “regular, consistent, or predictable” non-remote work. Therefore, employers using remote I-9 procedures must weigh the risks against the administrative convenience and the possibility of fines and other penalties in the event of an I-9 inspection.