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ICE Modifies Form I-9 Flexibility – In-Person Verification May be Required Now

on Wednesday, 31 March 2021 in Labor & Employment Law Update: Sarah M. Huyck, Editor

On March 19, 2020, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced a “flexibility policy” that allowed some employers to remotely inspect and retain copies of documents for the Form I-9 process on a temporary basis as a result of the COVID-19 pandemic. Employers who took advantage of the policy are required to create and maintain written documentation of their remote onboarding and telework policy for each employee. The policy has been extended multiple times, including an ICE announcement today which extends the policy, but does not set a definite expiration date. DHS separately announced the extension to May 31, 2021. 

What does this mean? Since its inception, the policy has indicated that when the employer “returned to normal operations”, the Form I-9 requirements would return to original, in-person document review. Specifically, while employers with employees taking physical proximity precautions due to COVID-19 were not required to review the employee’s identity and employment authorization documents in the employee’s physical presence, once normal operations resumed, all employees who were on-boarded using remote verification would be required to report to their employer within three business days for in-person verification of identity and employment eligibility documentation. The employer is then required to update any completed Form I-9 by adding “documents physically examined” with the date of in-person inspection in the Section 2 additional information field or next to Section 3 of the Form, as appropriate. In addition, if it is the same person who originally inspected the documents remotely, they should add their initials. If the physical inspection is done by a different person, that person should also write their title and full name.

“Normal operations” has never been defined; and, in informal discussions with ICE, the agency had recommended focusing instead on the end of the flexibility policy. However, the agency has maintained from the beginning that the policy only applied to employers and workplaces that are operating remotely, implying that everyone was remote; and, if there are employees physically present at a work location, no exception was allowed for in-person verification. Further, all along the agency has taken the position that, as employees return to the worksite, original documents should be reviewed and Form I-9s updated at that time, rather than waiting until the policy expired.

Effective April 1, 2021, the in-person requirement that to inspect Form I-9 identity and employment eligibility documentation applies to those employees who physically report to work at a company location on any regular, consistent, or predictable basis. Only employees hired on or after April 1, 2021 who work exclusively in a remote setting due to COVID-19-related precautions are temporarily exempt from the physical inspection requirements and only until they begin non-remote employment on a regular, consistent, or predictable basis (or the flexibility policy is terminated, if earlier).

Given the tone of the recent announcement from ICE, if your company has begun to return employees back to the office, even on a limited basis, HR should be working with them to complete the required in-person process within three days of their return. The agency has maintained from the beginning that when the remote verification flexibility ended, it could require all employees to be verified within three days of the end date of the policy, which could be difficult if your company has hired a large number of people in the last year. Our recommendation is that you begin now by determining which employees have returned to work in any capacity and coordinating an in-person meeting with each such employee to view their Form I-9 documentation. If nothing else, you will have given your HR department a head start if the policy is not extended beyond May 31, 2021.

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