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January 12, 2021
ICE Extends I-9 Form Flexibility to Jan. 31, 2021
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U.S. Immigration and Customs Enforcement (ICE) has extended its interim policy allowing virtual document-inspection methods for Form I-9 until Jan. 31. This is the 6th time the policy has been extended.
The provision applies only to employers and workplaces that are operating completely remotely because of the public health crisis.
ICE first announced relaxed rules for physically inspecting new hires' identity and employment eligibility documents in March of 2020, back when employers were beginning to deal with COVID-19-related orders to shelter in place and work from home. These “relaxed” rules apply where workplaces are shut down or where new hires and employees needing to update temporary work authorizations are subject to quarantine or no-travel orders.The guidance allows companies to review the I-9 form's Section 2 documents virtually—over video link, by scan, fax, or e-mail, for example—within three business days of the worker's start date.
There are requirements for employers to use the virtual I-9 verification process. Employers must:
- Ensure that I-9s for new hires are completed within three days of the employee's start date.
- Ensure that Section 3 of the form for reverifications is completed before the employee's work authorization expires.
- Maintain copies of the documents inspected remotely.
- Maintain written documentation of the remote onboarding and telework policy for each employee.
- Write "Remote inspection completed on xx/xx/xxxx" in the form's Section 2 Additional Information box or in Section 3 for reverifications.
- Update the form once a physical in-person inspection is performed.
Employers using electronic I-9 systems, in particular, have quickly adapted to the virtual process using helpful tools such as employee document capture and upload, COVID-19 follow-up tracking, and advanced reporting.
The ICE guidelines are not mandatory. Employers can still follow standard Form I-9 procedures, including using authorized representatives to complete verification on the employer's behalf.
Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person physical verification of their identity and employment eligibility documentation. "Normal operations" has not yet been defined by ICE.
With COVID-19 cases still high, it is unlikely that this will be the last extension.
(Portions of this article first appeared on SHRM.org).