On May 14, 2020, Immigration and Customs Enforcement (ICE) announced an extension of the flexibilities in rules related to Form I-9 compliance, initially granted on March 20. The ICE notice extends the ability for employers to conduct Form I-9 completions virtually/remotely, for an additional 30 days, or until June 18. The guidance provides an alternative – for a time – to “in-person” I-9 document review in light of precautions necessitated by COVID-19. With the rules relaxed, Section 2 verification or Section 3 reverification can be virtually completed via an online meeting (Skype, Zoom, FaceTime etc.), email, or fax, provided employers retain copies of the documents, and complete the Form I-9 within three business days of an employee starting work. In the original announcement, the Department of Homeland Security (DHS) stated that the virtual/remote process was not available to employers where employees were physically present at a work location. DHS also requires employers availing themselves of this discretion to review the employee’s identity and employment authorization documents in the employee’s presence, once normal operations resume, making the flexibility not so flexible and very time consuming in practice. The process of having to virtually check documentation, and then recheck in person within a tight time frame, has been unworkable for many employers.
Accordingly, some companies have concluded that they would be better off using the Authorized Representative I-9 completion option, where someone outside the company is designated to complete Section 2. An Authorized Representative can be any person the employer authorizes to complete and sign the Form I-9, on their behalf. Due to the stress of COVID-19, many employers encouraged using a “friends and family” Authorized Representative model to replace the traditional I-9 process (in both work from home and onsite work scenarios). The Authorized Representative process requires careful consideration of logistics and details. With proper planning and safeguards, employers should be able to minimize liability for violations in connection with the I-9 itself or the verification process completed by the Authorized Representative. The benefits of using an Authorized Representative model vs. the Virtual/Remote I-9 completion model are something employers should consider carefully with experienced counsel. Seyfarth’s original guidance appears here under ICE and USCIS I-9 Compliance Obligations.
The recent ICE notice also extends the timeframe for employers who were served with Notices of Inspection (NOI), during March 2020, by 30 days. It is also expected that ICE will not issue any NOIs during thing time, but this is not explicitly stated by the government.
Unfortunately, the ICE announcement does not address the numerous questions employers are asking, including:
- When does the updated I-9 need to be completed?
- Who defines when normal business operations resume? Individual companies or the government?
- When do the three days start, to complete the I-9 in-person, if my company is returning to work in shifts over a period of time and HR coverage is spread thin?
- Should the I-9 Completer, who views the documents in-person, amend the original Section 2 signature block when they complete the Form?
- Or should the in-person I-9 Completer complete and sign a new Section 2? Do they need to acknowledge and sign the attestation?
- Who writes “COVID-19”, the person reviewing electronically or the person updating the Form?
- Assuming it’s both, should we add language to document the initial date of virtual completion and the method as well as information on the in-person completion?
- How can an I-9 Completer who utilized the virtual I-9 process via fax or email sign Section 2, as they cannot verify identity of the new hire?
- Will ICE consider it a violation if the original, virtual I-9, was completed late but the in-person review is timely?
The good news is that we understand ICE is working with US Citizenship and Immigration Services (USCIS) to craft responses to many of these questions. USCIS previously released temporary policies related to COVID-19 can be found here. In the interim, Seyfarth is assisting employers in developing proactive policies and procedures based on how we think the government will determine compliance post-COVID.
Join the Seyfarth Immigration Compliance, Enforcement, and Investigations Group on Monday, May 18, 2020, for a Webinar discussing all things I-9 during COVID-19.