Reminder – Virtual Verification of I-9 Documents Only Applies for New Hires Working Fully Remotely Due to COVID-19 Precautions

Posted by: Karen Booher on March 12th, 2023

It’s hard to stay on top of all the changing employment laws – particularly those surrounding changes that were put into effect due to COVID-19.

On March 20, 2020, the Department of Homeland Security (DHS) began a new policy where, due to COVID-19 precautions, it would exercise discretion for all new hires since that date to defer the physical presence requirements associated with the Form I-9 pursuant to the Immigration and Nationality Act (INA).

The original period was to expire on May 19, 2020. Since then, it has been extended many times.

The original temporary policy of DHS defers for employers the requirements to review Form I-9 documents in person with new employees where employers and workplaces are operating totally remotely due to COVID-19. In these situations, employers may inspect Section 2 documents remotely through a virtual connection (i.e., video link, fax, or email). Then, employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 “Additional Information” field.

Current Extension of I-9 Remote, Virtual Verification is Through July 31, 2023

On October 11, 2022, DHS and U.S. Immigration and Customs Enforcement (ICE) announced a nine-month extension until July 31, 2023, of the policy allowing remote, virtual verification of the documentation required for a Form I-9 when a workforce is working remotely.

In this most recent extension, DHS/ICE relaxed the definition of a remote employee and stated:

“If employees hired on or after April 1, 2021 work exclusively in a remote setting due to COVID-19 related precautions, they are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the INA 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.”

Currently, once the National Emergency ends or normal operations resume, all employees onboarded using remote verification must report to their employer within 3 business days for in-person physical verification of their identity and employment eligibility documentation.

What’s Next?

Many employment attorneys believe that DHS will ultimately realize this 3-day rule noted above will be impossible for many employers to comply with and, thus, there is a chance it may be scrapped or modified.

There is also the possibility that a permanent remote, virtual I-9 verification process may be implemented.

We will have to wait and see what happens there. Stay tuned!

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Source:

https://www.littler.com/publication-press/publication/will-virtual-remote-i-9-verification-post-covid-become-reality