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Is Virtual I-9 Verification Here to Stay?

By Marylou Fabbo - Skoler, Abbott & Presser, P.C.

July 12, 2022

In April 2022, the Department of Homeland Security (DHS) and the US Immigration and Customs Enforcement (ICE) announced an extension of the temporary guidance on flexibility in complying with Form I-9 Employment Eligibility Verification. ICE originally announced the flexibility on March 20, 2020. It has been extended numerous times since then and is currently set to expire on Halloween. Rumor has it that it may become permanent. The flexible standard applied to many different items related to the Form I-9 (and may no longer apply to some). In this blog, we discuss document verification that takes place other than in-person.

Agent for Remote Verification vs. Virtual (Flexible) Verification

New employees must complete a Form I-9 demonstrating that they are legally able to work in the US. Within 3 business days from the date of hire, the employee must present and the employer must review documentation that identifies the individual and demonstrates that they can legally work in the country. A company agent or representative must sign off that the document inspection has taken place. Because the COVID-related “flexible verification standard” and the long-standing acceptable method of appointing an agent to remotely (but in-person) verify an employee’s identity and employment authorization documents have both been referred to as “remote” verification, let’s set the story straight.

Using an Agent for In-Person Remote Document Examination: Prior to March 20, 2020, employers were required to physically inspect the documents the employee presented. When the employee works at the physical workplace, that was not usually an issue. As an increasing number of workers began working in other states, from home, or at other remote locations, presenting themselves at the employer’s physical office with the required documentation became inconvenient. Even prior to March 20, 2022, employers could use any authorized agent to physically and in-person inspect the employee’s documents and sign off on the Form I-9. Employers have used librarians, notary publics, lawyers, or people they happened to know within the particular geographic region as the federal government does not require authorized agents to have any specific qualifications. Employers are responsible for making sure the Form I-9 is completed correctly, so the most important factor when choosing an agent is trustworthiness. Prior to March 20, 2020, reviewing someone’s documents over a web platform, FaceTime or similar means was not permitted.

Virtual Document Examination: On March 20, 2020, due to COVID-19 protections, ICE announced that employers would temporarily be able to inspect an employee’s work identity and work authorization documents outside of the employee’s presence, including by video link, fax, email, etc. The flexibility was introduced in order to reduce in-person contact and, correspondingly, the transmission of COVID-19. This standard was intended to be temporary, which meant that once an employee returned to the workplace, in-person inspection was required. While originally due to expire years ago, it continues to be extended.

How the Flexible Standard Works

An employer who inspects employment authorization and identity documents remotely, such as over Zoom, is required to enter “COVID-19” on the Form I-9 as the reason for the physical inspection delay. Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, and the employer must add “documents physically examined” with the date of inspection to the additional information field on the Form I-9. Employers who avail themselves of the option to verify employees other than by in-person means are required to provide written documentation of their remote onboarding and telework policy for each employee. Employers should be careful not to overlook the in-person requirement for employees who return to the workplace as the exception to having to do so is only temporary. But will it remain that way?

Permanent Virtual Verification to Come?

Employers can always use a notary public or other person for in-person verification of an out-of-state or otherwise remote worker. However, the employer is liable for any errors that are made related to document inspection. Therefore, employers have expressed interest in being able to continue verifying Form I-9s by means other than in-person.

DHS plans to propose to revise employment eligibility verification regulations to allow the government’s authorization of alternative document examination procedures in certain circumstances or with respect to certain employers. Late last year, DHS announced that they were actively seeking public feedback about making the remote document verification option permanent, and recently opened up a second comment period, which will close on August 8, 2022. You can go here to submit a comment.

No timeline for finalizing a rule has been put into place, and many questions remain open. What organizations will be able to take advantage of the standard? Will there be a fee? What “circumstances” will afford employers the ability for something other than in-person review? Only time will tell.

www.skoler-abbott.com

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