U.S. Immigration and Customs Enforcement (ICE) has announced that employers have 30 additional days in which they can review I-9s in person for remote staff whose documents were examined remotely.
ICE clarified that employers have until Aug. 30 to perform all required physical examination of identity and employment eligibility documents for those hired on or after March 20, 2020, and who have received only a virtual or remote examination.
ICE is recommending that employers plan ahead for the Aug. 30 compliance deadline, so they are not left scrambling to complete the in-person inspection.
What If Original Employer Representative Is Unavailable?
The ICE guidance presumes that the same employer representative who reviewed the documents remotely will also conduct the in-person document review. However, if the person who virtually examined the documents is not the one who performs the physical inspection, the U.S. Department of Homeland Security (DHS) previously advised that the employer representative conducting the physical inspection complete a new Section 2 of the Form I-9 and attach that to the complete remote inspection Form I-9. In some instances, the employee will be working remotely and not near the employer. Such a situation may require relying on the services of an authorized representative for completing Section 2.
Action Plan
Begin planning for and implementing the physical inspection process. Develop a list of employees hired since March 20, 2020, that require physical document inspection. Employers complying with previous I-9 guidance should have already physically inspected documents for those employees who have returned to in-person work under normal conditions or those physically reporting to work at a company location on any regular, consistent or predictable basis. If employers have not already verified documents for those employees, their inspection should be prioritized.
Alternative Options
In a 2022 notice of proposed rulemaking, ICE said that in light of advances in technology and new work arrangements, the “DHS is exploring alternative options, including making permanent some of the current COVID-19 pandemic-related flexibilities to examine employees’ identity and employment authorization documents for the Form I-9. This rule would not create such alternatives but would instead formalize the authority for the Secretary to extend flexibilities, provide alternative options or conduct a pilot program to further evaluate an alternative procedure option—in addition to the procedures set forth in regulations—for some or all employers, regardless of whether their employees physically report to work at a company location. DHS would introduce any such alternative procedure in a future Federal Register notice that would include the parameters for the alternative procedures, any applicable conditions for participation, and for how long the alternative procedures would be available.” Such notice has not yet been issued. HRN is monitoring this situation.
