ICE Warms to the Cold Realities of COVID-19: Latest I-9 Virtual Flexibility Guidance Extended to May 31, 2021

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Seyfarth Synopsis: This announcement extends the flexibilities in rules relating to Form I-9 compliance that was initially granted last year. It also expands the scope of the “in-person” exemption benefit to certain employees, and offers flexibility for companies that are phasing back in employees, as doing so will no longer trigger the in-person requirement for all new hires. While an improvement in the overall dialogue, the guidance leaves uncertainty regarding the end of I-9 virtual flexibility, and as such, employers should consider moving away from the virtual completion model while continuing to heavily document current practices.

With employers impatiently waiting, the U.S. Immigration and Customs Enforcement (ICE) announced (at 2:00 PM EST on March 31, 2021) another sixty (60) day extension of the flexibilities in rules related to Form I-9 compliance, initially granted in March 2020. These flexibilities have been extended until May 31, 2021. The announcement was expected, as a portion of the American workforce is still very much remote, including much of the federal government in Washington, D.C. However, the delay in the announcement was disappointing, causing unnecessary stress on already fragile H.R. departments.

ICE worked in conjunction with U.S. Citizenship and Immigration Services (USCIS) as well as other agencies, to draft the March 31st updated guidance, which continues to allow for virtual inspections (via video, fax, or email) of employment eligibility and identity documentation, provided companies maintain copies of those documents, keep written documentation of their remote onboarding and telework policy for each employee, and complete an in-person inspection upon returning to work. This collaboration produced guidance that goes beyond the timing and actually dips a toe into the still frigid waters of the various scenarios U.S. employers are facing when onboarding new hires or reverifying employment eligibility for existing employees.

So, What's New?

The government now seems to agree that there is no “one size fits all” policy or mandate. Some companies remain shuttered while others are starting to consider what returning to work will look like. Still, employers who never closed their doors have their own set of issues, including protecting H.R. and other staff charged with completing Forms I-9, in person, during an ongoing pandemic. The updated guidance is reflective of the current state.

No Longer 100% Remote

The recent announcement basically expands the scope of the in-person exemption benefit to certain employees hired on or after April 1, 2021, who are working remotely due to COVID-19 reasons. Specifically, the guidance states:

"The current extension includes guidance for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.”

Essentially, this update expands the original directive, found in the original March 2020 guidance, which read as follows:

"This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.”

It also slightly walks back the notion that companies need to be 100% remote to allow for the use of virtual inspection of identity and work eligibility documents. The government now appears to be expanding the original exception for those employees in lockdown to those employees working exclusively from home due to COVID-19 precautions. Accordingly, companies will no longer be forced to complete I-9s, in person, due to security or IT personnel working onsite. Furthermore, companies that are phasing back in employees will no longer trigger the in-person requirement for all new hires.

Keep in mind the guidance is forward facing and not retroactive. The April 1 date implies that despite employers now being able to verify any remote new hires' documentation virtually, if employers were not previously operating fully remote and were performing virtual inspections for their remote workers (or in-person workers), they may find themselves in a pickle. In these cases, employers should carefully memorialize their situation, the reasoning for using the flexibility, and, if audited, request that ICE evaluate their situation "on a case-by-case basis" referenced in the original 2020 announcement. We do not see why the policy cannot, and should not, be applied retroactively. (Mental note: put it on the "wish list". )

Returning to Work

Sadly, ICE didn't address everything. Specifically, we do not know what will happen when ICE ends the virtual policy. There are several questions that need answers, sooner rather than later.

Will ICE offer a certain amount of time to meet the requirements to inspect documents in person, update expired List B documents, and otherwise, ensure that all original Forms I-9 are accounted for?
Will ICE require that all virtual Forms I-9 be updated with an in-person physical inspection within three (3) days of ending the policy?
Will ICE announce in advance when the policy will end in order to provide employers with a buffer?

While some alarmists are counseling that the policy could end on a Monday, without prior warning, and then ALL Form I-9 updates would need to be completed by a Thursday, we do not believe that will be the case. However, companies should plan accordingly and consider updating Forms I-9s in-person, wherever possible and safe.

Do We Have a Choice?

The announcement answered the following questions:

Can we start verifying in-person now, even if the company is still technically closed?
Are there alternatives to the virtual I-9 verification policy?

ICE reminded employers that they can remain remote but still initiate, where appropriate, updating the Forms I-9 as mandated in the original guidance:

"The flexibilities discussed here do not preclude employers from commencing, in their discretion, the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020."

While it is likely the virtual verification policy will be extended until the end of 2021, employers should strongly consider another viable option – using authorized representatives for remotely hired and reverified employees. During the pandemic, the authorized representative model morphed into a "Friends & Family" model as employees were quarantined, socially distanced, and COVID safe. The authorized representative method serves as a significant time-saver if correctly crafted and implemented carefully.

Seyfarth continues to formulate, test, and audit various authorized representative models to complete Section 2 and Section 3 of the Form I-9. Anyone considering the use of an authorized representative should consider all the implications carefully with counsel as the representative's actions are imputed on the company. Additionally, a document "copy" policy under this model, while not required by the regulations, is highly recommended, along with what we would term a compulsory post-verification audit to ensure the integrity of the process.

All should consider this model due to the one major benefit it offers: it's “one and done”. The Form I-9 is completed just one time, documents are verified just that one time, and there's no need for the two-step mandate created by the virtual process, which requires a subsequent in-person verification.

The government did not fully tackle the following questions:

What does "normal operations resume" mean?
Who will define normal operations?

With "phase-ins" of the workforce, state and local mandates, and individual employee anomalies, a bright line test is going to be difficult to create. ICE has not said when normal operation are going to begin, nor have they said if they will dictate the timing for employers. Furthermore, ICE has started to substantively address these issues by outlining a defining set of characteristics of non-remote employment. According to the new guidance, non-remote employment applies to onsite employment on a "regular, consistent, or predictable basis." So if a new hire works mainly remote, but occasionally shows up at the office, it stands to reason they can still be considered a remote employee up until that routine changes and they come in regularly, consistently, or on a predictable basis.

In contrast, the original guidance reads:

“Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.”

The above questions are critical, and we also must ask, “Who is going to define the resumption of normal operations?”

The government should allow businesses to define and memorialize the normal operations timing. This information can then be presented during any subsequent audit of a company's Forms I-9. Generally, employers are acting in good faith. Accordingly, this should not be a difficult consideration for the government.

What Should Companies Be Doing Now?

Employers should decide whether or not they will use the virtual completer verification I-9 process, and if so, confirm they are eligible to do so. We have been recommending, and continue to recommend, moving away from the virtual completion model. The fact is virtual completion requires a two-step process, making it unsustainable in the long term. Of course, we continue to work with the government to move towards a workable virtual model that allows for physical inspections to be completed remotely with the right safeguards and best practices in place, removing the need for in-person follow-up.

For those that have been using the virtual verification policy, employers should ensure they are tracking virtual completions accurately, completing the I-9s timely, and running E-Verify where appropriate, as well as obtaining physical copies of the Forms I-9 (if completed on paper). Employers should also be memorializing, in writing, "remote onboarding and telework policy" per the original ICE directive. Since things are fluid, storing updates of policies when appropriate should be contemplated.

Other things to consider include identifying List B expired documents that were accepted from states that did not extend the validity of the underlying document since these will need to be reverified unless ICE and USCIS reconsider this absurd mandate. Identity should not have to be updated for the I-9s completed with expired List B documents regardless of state extensions. (Mental note: put this on the “wish list” as well.) Finally, companies that are returning to work, and updating Form I-9s on a rolling basis should be following the DHS guidance, and in particular the ICE directives related to updating Forms I-9s found in I-9 Central Q&As here (see the 6th question down for the hidden gem). Notably the ICE recommendations are not found in the related COVID-19 examples, issued by USCIS, here.

If your company is interested in joining a coalition of like-minded companies championing the modernization of the employment eligibility process, including a permanent virtual option (without a secondary review) and related compliance changes, please email the author directly.

For questions regarding I-9 compliance, worksite enforcement audits, E-Verify compliance, Department of Labor immigration related wage and hour investigations, general H-1B compliance and DOJ IER anti-discrimination matters contact the Seyfarth Immigration Compliance and Enforcement group, or the author, Dawn Lurie, directly at dlurie@seyfarth.com.