Practice Pointer: Physical Inspection of Form I-9 Documents for Forms Prepared during Temporary Virtual COVID I-9 Flexibilities Must be Completed by A
Editor’s Note
On July 25, 2023, DHS authorized a new virtual document examination option for Form I-9 that can be used by certain employers in limited circumstances. For information on how this new option interplays with the end of COVID-related I-9 flexibilities, see AILA’s practice pointer, Practice Pointer: Using the New Virtual Verification Option to Update I-9s Prepared during Temporary COVID I-9 Flexibilities, published on July 28, 2023.
Background
DHS recently announced that the temporary flexibilities for virtual Form I-9 document review (temporary virtual option) will end on July 31, 2023 (well over 3 years after the first March 2020 announcement) and employers must complete the required physical inspection for all Forms I-9 created under the temporary policy no later than August 30, 2023.
Employers must plan to complete physical inspection of documents for Forms I-9 completed under the temporary COVID I-9 policies by August 30, 2023. Lack of Form I-9 related compliance and/or completion of the physical inspection may result in significant fines. The temporary virtual option was available only on certain conditions and in March 31, 2021, DHS guidance shifted the prior focus in determining its applicability from whether an employer was taking physical proximity precautions under COVID to whether the employee was temporarily working remotely as a result of COVID in a position that was not intended to be a fully virtual role. This guidance, issued about a year into the pandemic, was clear that the temporary virtual option is not available for any employee hired (or re-verified) after April 1, 2021, where the position is a fully remote role with no expectation of the employee working at an employer worksite on a regular consistent basis. In essence, this means that employees who were hired to work remotely (from anywhere in the US) were not allowed to utilize the temporary virtual option.
DHS instructed during the temporary remote period that employers must complete physical Form I-9 document review where: the employer is no longer taking COVID precautions; the employee is a fully remote worker hired after April 1, 2021 (not working remotely only on a temporary basis as a result of COVID); or the employee(s) are back in the office on a regular and consistent basis. As a result, as employees returned to the office, even if only for one day a week, the update to the Form I-9 with a physical inspection of the document(s) was required.
Logistics
Employers may be struggling to comply with physical inspection of Form I-9 documentation because their workforces may be hybrid, or even still remote. Other factors, including limited HR teams or a very large number of employees requiring physical inspection may be contributing to the burdens associated with the mandatory physical inspection and update. In this case, employers may wish to consider using an authorized representative or designated agent model to assist in the process. In this scenario, a third-party agent steps into the shoes of the employer to complete Section 2 (or Section 3) of the Form I-9 on an employer’s behalf. While there are vendors that offer authorized agent services, relying on them can be tricky as they do not usually offer any particular quality control or training. Instead, (largely out of necessity) many employers have allowed friends and family members of the employee to serve as the representative to assist with reviewing identity and employment eligibility documents. If employers choose to use this method, it is imperative that clear Standard Operating Procedures and directives should be created and best practices, including post-verification completion audits and document copying mandates, outlined to ensure accuracy and compliance. Inasmuch as employers are liable for the representative’s actions and any errors on the form, adding these guardrails is critical.
How should employers update their Forms I-9?
How your client updates their Forms I-9 will depend on whether the company uses paper Forms I-9 or an electronic I-9 system. Electronic I-9 vendors should have created workflows to identify and then update temporary virtual option Forms I-9. Not all of them did so. If there is no workflow, attorneys will need to develop manual process to assist their clients. Generally, employers using electronic I-9 systems should work with their vendor to record the new information in the additional information box or in a new Section 2, while also ensuring the annotations mandated by DHS are included on the form. They should also ensure that the required annotations noting both the initial virtual completion and then the subsequent physical inspection are placed on the form. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) have provided limited guidance for updating Forms I-9 once the physical inspection occurs (see examples on the USCIS website). Attorneys should be familiar with the USCIS FAQs, Questions and Answers Related to the End of ICE COVID-19 Flexibilities, although much of the guidance is tailored for paper Form I-9 completion and does not contemplate the substantial number of employers using electronic I-9 systems. Accordingly, judgment calls will need to be made as employers with electronic I-9 systems will be forced to consider the possibility of using a combination of paper (also combined possibly with the use of a remote agent) and electronic forms.
What’s Next?
The August 30, 2023 deadline should be viewed as ICE’s final backstop for when physical inspection must be completed. If physical inspection was required earlier under the fact patterns outlined above and not completed, employers could still see fines associated with untimely paperwork violations but they could very likely reduce their potential exposure by meeting the August 30th deadline. Simply ignoring the DHS mandate would be unwise and employers should make every effort to update forms as soon as possible.
While permission to conduct virtual Form I-9 inspection because of the pandemic is ending, we expect to see a permanent virtual Form I-9 document rule issued in the coming months following a DHS request for public comment on a Notice of Proposed Rulemaking published in the Federal Register on the possibility of expanding verification options, on which AILA submitted comments. While this is a positive development and the forthcoming rule may enable alternate procedures for Form I-9 document verification that include permanent virtual document review, it is important to emphasize that employers should not anticipate that they will be able to bridge a future permanent virtual Form I-9 option into the end of the temporary virtual flexibilities presently set to expire on July 31, 2023. DHS has been clear that the temporary virtual option for Form I-9s is completely separate from any future permanent virtual provision. As advised in AILA’s practice pointer, Remote I-9 Documentation Review: Don't Let Your Clients Become Complacent - Verify Now!, AILA members should be coordinating with their clients to ensure compliance and advising accordingly.