As of early Friday morning, July 17, there’s been no announcement by Immigration and Customs Enforcement (ICE) confirming whether it will continue the flexibility granted in the Form I-9 process, temporarily suspending the in-person physical inspection requirement. ICE originally announced the relaxation on March 20, as employers were beginning to grapple with COVID-19 work-from-home and shelter-in-place orders. The initial guidance allowed companies to review “Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents within three business days for purposes of completing Section 2.” The relaxation of this requirement was extended through Sunday, July 19. Employers who have been using the virtual process, and will need to switch gears over the weekend, are getting very nervous.
Are There Any Alternatives to the Virtual Policy?
Unfortunately, the second step of the virtual policy requiring the employer to inspect the documents within three business days physically is burdensome. Due to the process’s complicated and time-consuming nature, many employers opted to use the Authorized Representative method discussed in our blog, allowing friends and family (F&F) members to complete the Section on their behalf instead of adopting the Virtual method. The F&F process was also implemented by companies that had new hires on site, but absent or scaled-down HR teams. Implementing F&F process should not be taken lightly; rather, it should be carefully planned and executed and most importantly audited.
With second and third waves of COVID-19 hitting the United States, companies across the country have been considering return to work (RTW) dates and phase-ins, developing plans for long term remote employees, drafting communications and looking for mechanisms to keep employees safe and productivity up.
What’s Normal Operations?
As stated in our blog, ICE understands that RTW planning is complicated. We recommend that companies memorialize their policies as part of a historical record for future I-9 audits. The definition of resuming normal operations should be defined, updated and saved by each business. It will be the business that defines the date, not the government. Accordingly start dates will need to be tracked, along with any anomalies that create alternative start dates for a part of the workforce or for certain individuals.
Remember, the three day clock does not start from the end of the Virtual I-9 policy (currently slated to terminate on July 19) but rather three (3) days from when your company resumes normal operations.
Responsibilities when Returning to Work
For companies that used the virtual option and are already in the process of resuming business, it is critical to ensure documents are physically inspected within three days of returning to work. DHS’s original guidance on updating the Form I-9, noted that once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9 or section 3 as appropriate. There was not much in terms of details other than that general guidance and employers were rightfully frustrated. In June, US Citizenship and Immigration Services (USCIS) responded by issuing Form I-9 Examples Related to Temporary COVID-19 Policies. The USCIS FAQ contains six examples illustrating the recommendation “that you notate Form I-9 when remotely inspecting employment authorization and identity documents and then subsequently performing the required physical inspection [within three days]once normal operations resume”. While the guidance was a start, there are still many open questions.
Will ICE Issue Clarifying Guidance?
Unfortunately, the USCIS FAQs did not dive deep enough. For example the scenario where the person performing the required physical inspection is different than the original I-9 completer was discussed, but the guidance appeared to not fully consider the implications of the advice. Here USCIS simply advised that the person who performs the physical inspection should indicate the date they physically examined the documents as well as their full name and title in the Additional Information field. Furthermore USCIS did not discuss this scenario of recording a different set of documents during physical inspection. Remember the employee is not bound to bring in what he or she originally presented. In both of these more complex situations we recommend completing an entirely new Section 2 and attaching it to the original form. This suggestion is rooted in our belief that ICE will want the person viewing the original documents to execute the Certification which states:
I attest, under penalty of perjury, that (1) I have examined the document(s) presented by the above-named employee, (2) the above-listed document(s) appear to be genuine and to relate to the employee named, and (3) to the best of my knowledge the employee is authorized to work in the United States.
With or without an additional extension for virtual I-9 completion, we believe that ICE will announce guidance along these lines to ensure that the Certification is completed by the person who physically inspects the documents.
Requiring a new Section 2 or otherwise executing the Certification (electronic I-9s will find other ways to effectuate this) is not unreasonable. In fact it is very much in line with the stance ICE has taken from Day 1; the Agency has been reminding the public that the critical portion of the relaxed policy is the actual physical inspection. In light of the unprecedented COVID-19 circumstances ICE will start the clock when normal operations begins. You will have three days to get your house in order, so you better have a solid plan in place.
Considering the lack of guidance from DHS, and the lack of consistency between USCIS and ICE guidance, companies should not worry if their current process is different than whatever ICE announces, assuming they update anything. We are confident requirements will either be forward facing, or forgiving of situations where updates must be effectuated.
We expect that ICE will extend the Virtual I-9 policy for another 30 days later today, and will also provide further clarifications on how to update Forms I-9 upon returning to work. For questions regarding I-9 compliance, Worksite Enforcement, E-Verify and DOJ anti-discrimination matters contact the Seyfarth Immigration Compliance and Enforcement group or the author, Dawn Lurie directly at firstname.lastname@example.org