U.S. Immigration and Customs Enforcement (ICE) has been flexible about how to complete Form I-9 employment verification due to the COVID-19 pandemic, allowing companies working remotely to inspect documents virtually (e.g., over video link, fax, or email) since March 2020. The period of flexibility has been extended over and over and is now scheduled to end on November 19, 2020 – although it may very well be extended again.

DHS has explained that the flexibility is in place until the company returned to “normal operations,” after which documents that were examined remotely would have to be examined “in person” within three business days. This requirement did not clearly explain what constitutes a  return to “normal operations.” For example, if some employees  returned to the office, but not others, was that “normal operations”? If some essential employees were on site, but the human resources staff who generally examined I-9 documents were still working remotely, was that a return to “normal operations”? Indeed, if some employees were on site, was the employer entitled to use “flexibility” at all? ICE has indicated that these sorts of questions would be reviewed on a case-by-case basis. The hope has been that ICE would be reasonable given the circumstances.

At the end of October, DHS offered additional guidance and more clarity. In a guidance document, it said:

  • An employee’s documents must be verified in-person within three business days of that employee physically returning to the workplace.
  • ICE will not require employers to mandate that newly hired employees report to work in advance of any phased reopening procedure established by the company or state and local authorities merely for the purpose of verification.
  • Once the employee is physically present at a work location, no exceptions are being implemented for in-person verification.

This means that as long as flexibility remains in place, if employees are returning to the worksite in phased fashion, reverifications will be conducted in a phased fashion. But if the individuals who generally conduct I-9 verifications are not at the worksite, verifications will still have to be done within three business days, since no exceptions are allowed.

In FAQs, the DHS also clarified what to do about lost or expired documents:

  • If the documents that were valid when originally presented are no longer valid at the time of “in-person” verification, no additional documentation is required.
  • If the documents that were originally presented are lost or unavailable, the employee should fill out a new Form I-9 and present any relevant combination of List A, B, or C documents. The remote hire date should be used on the new form and the new I-9 should be attached to the old I-9 with a note indicating the original documents were unavailable at the time of verification.

ICE also has indicated that if the employee who conducted the virtual inspection is no longer available, the employee conducting the in-person verification should complete a new second page (Section 2), attach that to the old I-9, and sign the verification.

Jackson Lewis attorneys are available to answer any questions and advise on the complex web of I-9 requirements, including the interaction with E-Verify.