On August 31, 2021, DHS announced it is extending the temporary policy deferring the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (“I-9 Flexibility Policy”) for employees hired on or after April 1, 2021, and working exclusively in a remote setting due to COVID-19-related precautions. The I-9 Flexibility Policy was implemented to accommodate physical distancing requirements to mitigate the spread of Covid-19, and had been scheduled to end August 31, 2021. The I-9 Flexibility Policy is now extended through December 31, 2021.
If this 11th hour extension had not been issued employers that availed of the I-9 Flexibility Policy when onboarding workers hired on or after April 1, 2021, would have had only 3 business days to complete a physical inspection of employee documents evidencing identity and employment eligibility, and update Form I-9 in-person with the employee present.
With the announcement of an extension through December 31, 2021, employers have a temporary reprieve. The physical inspection and updating of Form I-9 must be completed by the earlier to occur of the following: 1) the return to normal business operations, 2) the end of the I-9 Flexibility Policy, or 3) the employee’s return to the work site on a regular, consistent, or predictable basis.
SGG recommends that employers do not wait until December of 2021 to work through the physical inspection and updating of I-9 Forms for remote workers. Rather, begin scheduling remote workers to appear in person with their documents as soon as it is safe to do so, especially if the number of remote workers is large. Otherwise, employers risk substantive I-9 violations for failure to timely comply with the law once the I-9 Flexibility Policy ends, and they are unable to meet with every remote worker and update their Form I-9 within three business days.
Best Practices for Completing Physical Inspection and Form I-9 Update
Ensure you have written documentation of the Company’s virtual onboarding and telework policy for each employee.
Send employees who were onboarded using virtual inspection of their I-9 documents a copy of the complete list of acceptable documents on Form I-9, and ask them to come to the office with original documents of their choice: either 1 from List A, or one each from Lists B and C.
If the same individual who conducted the virtual verification of I-9 documents will conduct the physical in-person inspection, that person should update Form I-9 by writing “documents physically examined” and the date of inspection in the “Additional Information” field in Section 2 of Form I-9, or in Section 3 as appropriate.
If a different person conducts the physical inspection, the guidance from ICE is to complete a new page 2 (Section 2) of Form I-9 and attach that to the Form I-9 completed by virtual verification. Otherwise, if they only make a note in the “Additional Information” field they would not sign their name and certify that they physically inspected the documents.
Do not tell employees which documents they must present for inspection. Allow them to choose from the list of documents on Form I-9. Employers should always be sure to follow a consistent I-9 process regardless of the employee’s citizenship status, immigration status, or national origin.
Frequently Asked Questions
1. With Delta cases rising, is it safe to assume that the flexibility policy will be extended again?
No. In fact, it is possible DHS might announce the end of the I-9 Flexibility Policy prior to December 31, 2021. When the policy does end it might leave very little time to comply – particularly for companies with large numbers of employees onboarded under the policy.
2. Our company does not plan to resume normal operations on-site until January 31, 2022. For employees we onboarded during the Flexibility Policy period using virtual verification, must we physically inspect documents by January 5, 2022? Or do we have until 3 days after our office reopens?
You must conduct in-person physical inspections of documents and update Forms I-9 within three days of whichever occurs first: the end of the Flexibility Policy, the resumption of normal operations, or the employee’s return to the work site on a regular, consistent, or predictable basis.
3. Are there any alternatives to a physical inspection of documents at our offices? For example, for employees who work far from our office can we use a notary to physically inspect the documents?
Yes. Consider whether your organization can switch to the “authorized representative” path for onboarding remote workers, which is a long-standing authorized practice unrelated to any accommodations for Covid-19. This option involves designating a third party, e.g. the employee’s friend, neighbor, a nearby notary public, or other trusted person, to conduct an in-person verification on the employer’s behalf. The authorized representative can conduct the in-person verification on the employer’s behalf for both new hires and reverifications.
If you adopt the authorized representative path for remote workers be sure to use it consistently, without regard to the employees’ citizenship status, immigration status, or national origin. The Company should prepare a written policy to clarify which employees may use the authorized representative method and who may serve as the authorized representative.
4. Can we inspect documents virtually such as through Zoom?
No, this would not meet the in-person physical inspection requirements.
5. What about employees we might hire after the termination of the Flexibility Policy? Do we have to complete the physical inspection of documents within three days of their start-date, or can we wait until the company resumes normal operations?
You must complete in-person physical inspection of the documents and complete the I-9 within 3 days of the employee’s first day of work.
6. If an employee who provided us with documents for virtual inspection is now separating from the Company, do we still need to undergo the physical inspection?
If the employment relationship is terminated while the I-9 Flexibility Policy is still in effect, prior to the company resuming normal operations, and prior to the employee’s return to the work site on a regular, consistent, or predictable basis, you are not required to conduct in-person physical inspection of the documents.
7. If an employee previously provided us a passport for virtual inspection and now is in the process of renewing the passport and cannot bring it to us for physical inspection, should we prepare a new I-9?
Show the employee the Form I-9 list of acceptable documents and ask the employee to provide documents of their choice. You may complete a new I-9 if you wish, and should attach a letter explaining the reason for the new I-9. If you do complete a new I-9, you should follow the same procedure for every employee unable to produce the original document that was presented for virtual inspection.
8. I understand California limits authorized representatives to licensed attorneys, immigration consultants and individuals authorized under federal law. Does this rule apply to all employees (regardless of their home location) for a California-based employer or does this apply to only employees who work in California?
The State of California does not have jurisdiction over other states, and therefore has no authority to assert that its laws and regulations should control who may complete an I-9 for an employee in another state.
9. I read that Texas law does not authorize notaries public to certify an I-9 Form.
Correct. In general, a notary should not notarize or “certify” an I-9 Form. If the Company appoints a notary as an authorized representative, the notary should be cautioned that they are not acting in their capacity as a notary, and they should not place their notary seal on Form I-9.
10. We are taking SGG’s advice to conduct physical inspections and update our I-9s now, but what if we are not able to find an authorized representative to conduct a physical inspection of the I-9 within 3 days of end of the Flexibility Policy?
Failure to timely inspect documents and update the I-9 would likely be considered a “substantive violation” incapable of correction if discovered in an ICE audit of the Company’s I-9 forms. Civil penalties for substantive violations range from $230 to $2,292 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations. The statute of limitations on a late I-9 completion is five years.
If you do not timely update an I-9 form and are later audited by ICE, the Homeland Security Investigations (“HSI”) auditor conducting the audit would consider the above factors. In our experience, if the auditor sees evidence of good faith efforts to comply it would not be unusual for them to issue a warning notice in lieu of imposing a fine.
Allegations of discrimination in the I-9 process on the other hand (e.g. wrongful termination based on nationality), are handled by the Justice Department’s Office of Special Counsel (“OSC”) for Immigration Related Unfair Employment Practices. Terminating the employment of an authorized US worker could be viewed as a serious matter and trigger an investigation and/or lawsuit by the OSC. Such matters often end in negotiated settlements involving monetary penalties and back pay for US workers whose employment was terminated.
SGG recently asked an HSI auditor what his thoughts were on this, and he commented that if a company is willing to assume liability for the I-9 it can ask just about any third party to certify they have inspected the documents, e.g. a spouse, roommate, parent, etc. We think it best if the authorized representative is unrelated and has some experience or understanding of the I-9 process, but the HSI auditor is correct – you can ask just about anybody to serve as the authorized representative.