U.S. Immigration and Customs Enforcement (ICE) is extending Interim COVID-19 Protections until 31st August 2021, its relaxed enforcement of the normal requirement to physically inspect the original documents introduced by new hires during the I-9 process and hence allow eligible employers to continue to implement remote I-9 verification in certain circumstances during the COVID-19 emergency.
Employers who are eligible for and choose to use the remote I-9 policy will want to review Section 2 documents distantly, by video, fax, or email, and should maintain copies of the documents. The ordinary timelines for I-9 completion remain in effect. Section 1 of the I-9 should be finished by the employee’s start date and Section 2 should be finished within three workdays of the start date. Employers taking advantage of these relaxed procedures should give written documentation of their remote onboarding and telework policy to each employee.
Remote I-9 policies for employees hired on or after June 1, 2021
Employers may utilize remote Form I-9 procedures for employees who are (1) recruited on or after 1st June 2021, and (2) are working completely remotely as a COVID-19 precaution. Even if the employer has employees working non-remotely at the employer’s premises. However, employers are needed to utilize standard I-9 procedures for new hires who are working non-remotely on a “regular, consistent, or predictable basis.”
If an eligible new hire completes the I-9 process remotely on or after 1st June. The employer isn’t needed to review the employee’s I-9 documentation in person until the earlier of (1) three days. After the employee starts working non-remotely on a regular, consistent, or predictable basis; or (2) within three days after the COVID-19 emergency has finished or ICE has ended the remote policy.
Employers can start physical inspection of affected employees’ documents earlier than this timeframe at the employer’s discretion. Employers should guarantee that they execute such an inspection practice in a consistent and non-discriminatory manner across the workforce.
Considerations For Employers | Interim COVID-19 Protections
Employers may continue to follow standard Form I-9 procedures. Including the utilization of third-party agents to complete verification on the employer’s behalf. Employers who are weighing whether to adopt or continue remote I-9 procedures should consider the following:
- The remote I-9 accommodation can be cumbersome. Employers may like to utilize or resume using standard I-9 procedures for their recently added team members and reverifications. This includes utilizing offsite third-party agents to inspect employee documents and complete Form I-9 on the employer’s behalf.
- Employers who utilize the remote I-9 accommodation will be needed to physically inspect the documents of affected employees no later than three days after normal operations resume. This implies that employers may have an extremely restricted window were to inspect the documents of large numbers of employees.
- If your organization utilized or utilizes remote I-9 procedures, consider starting a physical inspection of the documents of affected employees earlier than the deadlines recommended by ICE. If your association adopts this practice, it must be implemented consistently and in a non-discriminatory manner.
- Though the remote I-9 policy and its expansion give employers some welcome flexibility during the COVID-19 emergency. Employers should know that it isn’t clear how ICE will enforce the remote policy. Among different issues, the agency has not defined “fully remote work” or “regular, consistent, or predictable” non-remote work. Therefore, employers using remote I-9 procedures must weigh the risks. Against the administrative convenience and the possibility of fines and other penalties in the event of an I-9 inspection.