Don’t Forget About the Obligations Surrounding Virtual I-9 Verification

On April 25, 2022, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced a six-month extension until October 31, 2022, of the policy allowing remote or virtual verification of the documentation required for a Form I-9 when an employee is working remotely. And while many employers relied heavily on this policy at the start of the COVID-19 pandemic, the policy—although extended—does not completely relieve employers of the obligation to verify supporting Form I-9 documents in person. The following addresses how employers should determine whether virtual verification is still a viable option and what they should do once their deferral period ends.

What is virtual verification?

The virtual verification policy began on March 19, 2020, when due to COVID-19 precautions, DHS announced it would exercise discretion to defer the physical presence requirements associated with the Form I-9 pursuant to the Immigration and Nationality Act (INA). Employers could use video, fax, or email to conduct the verification remotely. The original period was to expire on May 19, 2020. To date, it has been extended several times and likely will continue to be extended unless and until the federal government declares an end of the pandemic.

But as COVID variants and remote work appear to be here to stay, employers should 1) remember that the physical presence requirements have only been deferred, not eliminated; and, 2) be wary of when the deferral period has ended for each employee.

When does an employer’s deferral period end?

The policy requires that within three business days of an employee returning to in-person work—even on a hybrid basis—an employer must physically verify the employee’s original Form I-9 documentation. And although an employer may have been able to virtually verify all of its new hires’ Form I-9 documents when stay-at-home orders were in effect throughout the country, most employers are now returning at least portions of their workforce to in-person work, which means that the in-person verification requirements may be triggered for those returning employees.

DHS has explained that employees who work exclusively in a remote setting due to COVID-19 related precautions are “temporarily exempt from the physical inspection requirements until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.” Although what constitutes non-remote work on a “predictable basis” is undefined, it is likely that most employees are now required to appear for work in-person on at least an occasional basis. If that occasion is triggered by a predictable event (e.g., a monthly or quarterly meeting), no matter how infrequent, then that requirement may trigger an end to the deferral of the physical verification requirements for that employee’s Form I-9. This means it is likely time for most employers to review their employees’ pandemic-era Form 1-9s to determine whether physical verification has been completed or is past due.

How to complete the physical verification

After determining that it is time to resume physical verification of Form I-9 documents for all or some employees, employers should notify employees of the reason for their need to verify documents in person. If the same employer representative reviewed the documents remotely and in-person, then the representative should note “COVID-19 Documents Physically examined on (date) by (name)” in the Section 2 “Additional Information” field. However, if the person who virtually verified the documents is not available to conduct the physical verification, then the employer representative who is conducting the physical verification should complete a new Section 2 of the Form I-9 and attach that to the complete remote verification Form I-9.

The Bottom Line

Virtual verification has made onboarding newly hired employees faster and easier for employers. And while there are signs that DHS is considering making virtual verification a permanent option moving forward, employers are not currently free from all obligations to physically verify their employees’ Form I-9 documents when able to do so. Unless employees exclusively work remotely, employers should complete the physical verification to ensure INA compliance.