On Sunday, July 19, 2020, a temporary Immigration and Customs Enforcement (ICE) policy allowing employers to conduct remote reviews of I-9 supporting documentation is set to expire. Unless the policy is extended, many employers will once again be required to conduct in-person inspections of new employees’ documentation, raising concerns about employers’ ability to comply with both social distancing guidelines and employment verification requirements. Given the ongoing public health crisis, employers are hopeful that ICE will extend its remote inspection policy again, but in today’s rapidly changing immigration environment, it would be imprudent to assume that DHS will continue its more lenient approach.

For example, just last week, ICE rescinded a temporary policy change that allowed international students on F-1 and M-1 visas to remain in the United States while their universities initiated emergency campus closures and transitioned to online learning. Under the updated policy, international students whose Fall 2020 course load is entirely online would have to depart the United States or risk violating their student visa status. The agency’s decision is already being challenged in court, but there is no guarantee that ICE would not pursue a similarly inflexible policy with respect to I-9 employment verification.

The I-9’s Physical Inspection Requirement

Under existing regulations, US employers are required to verify the identity and employment authorization of all new hires within three business days of the employee’s start date using the Form I-9. This verification requirement includes the physical inspection—in the new employee’s presence—of supporting documentation provided by the employee, such as a passport, green card, or Social Security card.

Due to the COVID-19 outbreak and companies’ abrupt shift to “working from home,” compliance with the physical inspection requirement became infeasible for many employers. In response, ICE adopted a more flexible approach to I-9 inspection, designed to enable employers to protect the health and safety of their workers while also maintaining good-faith compliance with the relevant immigration regulations.

Specifically, on March 20, the Department of Homeland Security (DHS) announced a temporary relaxation of the physical inspection requirement. Under the temporary policy, employers who are operating remotely:

• Can receive and review employee documentation by video conference, email, or fax.
• Must keep a record of all new hires for whom the physical inspection requirement has been deferred.
• Must enter “COVID-19” as the reason for the delay of in-person inspection in Section 2 of each I-9.
• Must complete physical inspections of all I-9 supporting documentation for remotely onboarded employees within three business days of resuming in-person operations.

This relaxation was initially valid for only 60 days. On May 14, ICE extended the remote inspection policy by 30 days, and on June 16, ICE again extended the remote inspection policy by an additional 30 days. ICE has not yet announced another extension of the policy, which is set to expire on July 19.

 What Does ICE’s Current Flexible Approach Mean for Employers?

Under ICE’s “flexible” approach to I-9 document inspection, all employers must still demonstrate good-faith compliance with the applicable law. However, the type of compliance required may depend on the current state of an employer’s operations.

• Employers that are not 100% remote are expected to conduct in-person review and verification. ICE has said it may make case-by-case exceptions, but ICE has provided no guidance on what would trigger these exceptions.
• Employers that are slowly beginning to bring their employees back to the workplace may also be expected to conduct in-person review and verification, as their operations would no longer be considered fully remote. Those employers may also be responsible for completing retroactive in-person inspections of I-9 documentation for any new employees who were onboarded remotely during the workplace closure. These in-person inspections would have to be completed within three business days of reopening, placing a heavy burden on employers at the time when management and staff are returning to work.
• Employers that continue to operate 100% remotely must still (a) collect, review, and maintain copies of their employees’ I-9 documentation, (b) document all steps taken under the policy to maintain good-faith compliance, and (c) commit to in-person review once their workplace reopens.

What Happens If ICE Ends the Flexible Approach?

The principal impact would be on employers that continue to operate 100% remotely. If ICE allows its flexible approach to I-9 verification to expire without providing further guidance:

• Employers operating remotely would be required to conduct in-person I-9 review and verification for all new hires, just like employers that are operating in-person and employers that have begun reopening workplaces.
• Employers operating remotely would also have to conduct in-person I-9 verification for all employees onboarded during the flexibility period, and would have to do so within three business days after the end of the flexibility period.

To plan for a potential end to ICE’s flexibility, employers seeking to comply with both the I-9 verification requirements and social distancing guidelines may wish to designate an “authorized representative” to conduct in-person I-9 verification with new hires, regardless of whether their physical workplace is open or closed. Per DHS:

• Employers may designate “any person” to act as their agent in conducting I-9 reviews and completing Section 2. By tapping a trusted neighbor or an individual in the employee’s household, the employer could thus comply with the in-person review requirement while also minimizing the risk of disease transmission.
• Employers who use an authorized representative would then be responsible for any mistakes or infractions committed by the authorized representative.

For some employers, that may be a risk worth taking to avoid the spread of COVID-19. Whether or not ICE allows its temporary relaxation of in-person I-9 verification to expire on July 19, hiring professionals will have to pay increased attention to document collection, review, and maintenance in order to ensure I-9 compliance for all new employees brought on during the COVID-19 pandemic.