Updated Sept 2021 – The Department of Homeland Security and U.S. Immigration and Customs Enforcement (ICE)  announced an extension on the flexibility in complying with requirements as it relates to an employer’s obligation for the Form I-9, due to COVID-19. The temporary policy has been extended through Dec. 31, 2021, allowing employers to continue to inspect Form I-9 documents virtually in certain circumstances to confirm an employee’s eligibility to work. 

Which Employers Does this Temporary Flexibility Apply to? 

This temporary flexibility permitting virtual inspection applies only to employers and workplaces that are operating remotely. If employees are physically present at a work location, this flexibility does not apply, and the Form I-9 documents should be reviewed in person as they normally would outside of COVID-19.  

However, the temporary flexibility does not remove the requirement of employees and employers to meet the following normal timelines for I-9 completion: 

  • Section 1 of the form must be completed by the employee’s start date; and
  • Section 2 must be completed within three business days of the start date.  

How Can an Employer Inspect I-9 Documents Virtually? 

The temporary policy allows employers to continue to inspect I-9 documents virtually, over video link, by fax, or email. This flexibility allowing virtual inspection will continue until an employee undertakes non-remote employment on a regular, consistent, or predictable basis, or until the policy is terminated. 

Is Virtual Inspection Mandatory During COVID-19? 

The ICE guidelines related to virtual review are not mandatory. Employers can still follow standard Form I-9 procedures, including using authorized representatives to complete verification on an employer’s behalf. The authorized-representative method could serve as a significant timesaver as the form I-9 is completed just one time, documents are verified just that one time, and there is no need for the two-step mandate created by the virtual process, which requires a subsequent in-person verification. 

A Practical Note for Employers: 

This current policy comes with the requirement and assumption that the employer will eventually meet with the employee to see those documents in-person. Once an employer’s normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days to present their documents for in-person inspection. In preparation for in-person document inspection when employees are regularly and consistently reporting into the office for work, it is recommended that employers maintain a list of all employees who were verified virtually (most likely from March 2020 – present).  

Additional Resources 

Disclaimer: This content is intended for informational purposes only and should not be construed as legal, medical or tax advice. It provides general information and is not intended to encompass all compliance and legal obligations that may be applicable. This information and any questions as to your specific circumstances should be reviewed with your respective legal counsel and/or tax advisor as we do not provide legal or tax advice. Please note that this information may be subject to change based on legislative changes. © 2021 Sequoia Benefits & Insurance Services, LLC. All Rights Reserved

Rachel Schwab – Rachel is a Senior Human Resources Business Partner at Sequoia One, where she works with high-growth companies on strategic human resources initiatives. This includes education and analysis on key HR topics, hosting compliance training, providing employee life-cycle guidance and development of policies.