This flexibility has allowed employers to review identity and work authorization documents virtually, rather than in-person as required under the USCIS Form I-9 instructions. It’s critical to remember that companies availing themselves of this process have only a temporary reprieve. The ICE guidance mandates that the business then conduct a physical inspection of the documents once “normal business operations resume.”  The government has not explicitly defined “normal operations,” but in liaising with ICE it has become apparent that they understand that returning to work (RTW) will be complicated. The resumption of normal operations will vary widely among industries, business sectors, and the incidence of COVID-19 diagnoses.  The definition of “normal operations” will undoubtedly vary as the new normal begins to take shape.  

Best practice dictates that companies should memorialize RTW guidance as part of an historical record, outlining the specifics of RTW process and policies.  This can be maintained with the “written documentation of their remote onboarding and telework policy for each employee” required by ICE pursuant to the original announcement.  Individual Forms I-9 may also need to be annotated with “audit notes” explaining any anomalies in individual situations.

After the ICE extension was announced, US Citizenship and Immigration Services (USCIS) reminded employers that E-Verify participants who choose the remote, a.k.a. virtual, inspection option should continue to follow current guidance and create cases in E-Verify for their new hires within three business days from the date of hire.