The Department of Homeland Security (“DHS”) announced on May 4, 2023, a planned end to the COVID-19 remote I-9 flexibility. Flexibility ends July 31, and prior pandemic I-9s must be corrected by August 30, 2023. Therefore, employers must act quickly to review and correct I-9s that have been remotely verified within the past three years.
Recommended procedures for correcting remotely completed I-9s:
- Create a list of all companies new hires March 20, 2020 to present. Pull up all your I-9s and determine which ones have had their documents remotely verified.
- Also pull all I-9s from March 20, 2020 from existing employees that have been rechecked (i.e., expired EAD work permits, expired I-94s for H-1B and other visa holders, etc.) and determine which have been remotely verified.
- Then arrange for the employee to come to the office with their original work authorization documents or authorize an individual who lives close by to complete the task on behalf of the company.
- In any case, Section 2 should be updated with a notation in the additional information box: “Original documents seen in person on date x” with your signature.
Best Efforts and Risk Assessment:
Of course, your company will want to do the best it can and try to achieve 100% compliance. As it can be difficult for some employers to achieve perfect compliance, it is helpful to consider the broader risk assessment. Specifically, US Immigration and Customs Enforcement (“ICE”) I-9 audits are very rare. Statistically, probably 1 in 1,000 companies are audited. While no one knows how ICE will handle an audit that also involves I-9s created during the pandemic, it seems unlikely that ICE will take a punitive approach toward a company that has not personally re-verified. DHS has a proposed rule to make remote verification via email, fax or video permanent. But the rule is not final yet, which is why the agency is telling employers to complete the verification task as per the old rule.
DHS has proposed making the remote I-9 pandemic rule permanent:
O proposed rule may become definitive as early as August. While no one is quite sure what the final rule will look like, our guess is that DHS will indicate that the rule only applies to new I-9s in the future and won’t make it formally retroactive.
Vendors to assist with remote checks:
as for brand new hires going forward who are 100% remote or hired during the pandemic, the ideal practice is to authorize someone who lives in that city acting on behalf of the company as an authorized signatory to review the original I-9 work authorization documents in the field and then complete either Section 2 or 3 of the I-9 in the field . Currently, there are quite a few providers that provide this service. In addition, large payroll providers have started a network for remote I-9 assistance. In some situations, a notary may also be willing to help. However, in California, notaries cannot do this unless they are also bonded immigration consultants.
Historical Perspective – The I-9 was created in 1986 before remote working:
It’s good that the USCIS has proposed a regulation to make remote I-9 verification permanent. This would be beneficial for several reasons.
First, of course, is the growing wave of telecommuting jobs where the employee cannot come to the office where the company’s human resources department is located.
Second, the personal verification requirement was created in 1986 by the INS legacy as part of the IRCA I-9 requirement. The rule was well intended – namely, that the employer would examine the documents and determine whether they are real. At the time, there were only fax machines, and the quality of a fax of a work authorization document was not very clear.
However, in the 1990s, the ability to create fake documents that looked very real became rampant. Then came scanners, crystal-clear PDFs, high-quality email, video calls, and more. So today, regardless of whether documents are reviewed in person or remotely, an employer never knows for sure if the documents are real. They can only attest that they look real and that the person’s documents verify work authorization. Therefore, the proposed rule allowing remote verification is a good practical solution in light of technological advances.
Strategies to minimize risk with I-9s:
I-9 Software: Purchasing an I-9 digital software system compatible with ICE protocols can be very helpful in minimizing I-9 completion errors. Being ICE compliant means the software provides a complete audit trail of who accessed the I-9, when and what they did. Digital software will flag many errors at the time of completion. Please note that just scanning an I-9 paper into an Adobe PDF will not meet ICE requirements.
Training: Any individual involved in the I-9 process must be properly trained.
DOJ Immigrant & Employee Rights (“IER”): The IER unit in DOJ is very aggressive. If an employer wrongly denies employment to someone they didn’t think was authorized work, no matter how well intentioned, the DOJ will issue a large civil investigation demand, name and shame the company, and fine them.
Consult the lawyer: When you encounter any unusual I-9 issues, consult an experienced employment attorney to avoid creating liability, both on integration and terminations.