On July 18, 2020, Immigration and Customs Enforcement (ICE) issued an extension of a temporary policy allowing certain employers to conduct remote review and inspection of I-9 documentation for new employees. The policy was set to expire on July 19, but has now been extended through August 19, 2020. The extension provides employers with additional time to ensure good-faith compliance with the I-9’s in-person inspection requirement, but that does not mean that employers should wait for the policy to expire before beginning in-person reviews.

ICE’s Remote I-9 Inspection Policy

On March 20, as the COVID-19 pandemic began forcing widespread closures of physical workplaces, the Department of Homeland Security announced that it would begin allowing certain employers to collect, review, and inspect new employees’ I-9 documentation remotely, rather than in person. The announcement included several important caveats:

• First, DHS made clear that remote I-9 inspection would only be an option for employers operating 100% remotely. If a given employer had employees physically present in the workplace, remote I-9 review would not be available and in-person inspection would be required.
• Second, the policy was to be a temporary accommodation designed to allow remote employers to protect the health and safety of their workers during the COVID-19 pandemic.
• Third, any employer that took advantage of remote I-9 inspection would have to complete in-person document review and collection within three business days of either the policy’s termination or the workplace’s reopening, whichever came first.

After an original validity period of 60 days, ICE extended its flexible approach to I-9 inspection by an additional 30 days in both May and June. ICE again renewed its remote I-9 inspection policy on July 18, permitting remote I-9 inspections through mid-August.

What Should Employers Do Now?

Employers should take affirmative steps to ensure good-faith compliance with the regulation’s in-person review requirement, even if they are still operating 100% remotely. Waiting until August 19 (or later if the policy is extended) to begin the process of in-person reviews for employees onboarded during the COVID-19 pandemic may be infeasible because employers would need to conduct months’ worth of in-person I-9 reviews within three short business days.

Instead, employers should consider utilizing an “authorized representative” to conduct in-person reviews of I-9 documentation and complete Section 2 of the Form I-9 with new hires. This approach offers several key benefits:

• Because authorized representatives can be trusted friends, neighbors, or household members of the new employee, this strategy allows employers to conduct in-person reviews while maintaining adherence to social distancing guidelines.
• While the employer would be responsible for any errors made by the authorized representative, by using such an agent the employer could reduce the backlog of remotely onboarded employees who would otherwise require in-person I-9 inspections once ICE’s remote inspection policy ends.
• Using authorized representatives to assist with in-person review will also free up hiring personnel to coordinate, monitor, and audit I-9s completed by authorized representatives of the company.

Though ICE has chosen to extend its remote I-9 inspection policy for a third time, the flexible approach will not last forever. As just one indication of the agency’s desire to return to normal procedure, in the same news release announcing the extension of the remote I-9 inspection policy, ICE affirmed that no further extensions would be granted to employers who were served Notices of Inspection (NOIs) back in March. Thus, the longer employers wait to begin the process of in-person reviews, the more challenging it will be to maintain I-9 compliance once the remote inspection policy ends. We thus recommend employers consider addressing the issue proactively by designating authorized representatives to conduct in-person reviews now, even before going back to business in their offices.