Today, the U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibilities in rules related to Form I-9 compliance that was granted earlier this year. This announcement was expected in light of the increase in COVID-19 cases across the country. The Department of Homeland Security (DHS) agreed to extend the policy until December 31, 2020.
ICE originally announced the relaxation of the in-person document review in March, and last extended it on September 15, with an end date of November 19. We discussed the implications in prior blog posts found here and here. Another of our blog posts, The 2020 Summer Defrost Continues: ICE Extends I-9 Flexibility, provides information and guidance on the flexibilities and what they mean to employers, including virtual I-9 completion dates, physical inspection dates, the use of an authorized agent, and the allowance attached to List B expired documents. Last month, in our post, Hidden ICE Guidance On Virtual I-9s, we updated our readers on the recent ICE directive describing how to complete Form I-9s after returning to work. The FAQ overview posted by ICE is a must-read for all employers who have utilized the virtual policy.
Today's announcement noted: "Going forward DHS will continue to monitor the ongoing national emergency and provide updated guidance as needed. Employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume."
So, How Will Normal Operations Be Defined?
The original March 21, 2020 ICE notice allowing for the flexibility stated the following:
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, Employment Eligibility Verification.
While "normal operations" have yet to be defined by the government, we are still hopeful that individual companies – not the government – will define the resumption of "normal operations." We continue to recommend that businesses memorialize decisions, including "phase-ins" and other timelines, individual employee anomalies, and any related protocols adopted relating to the timing of returning to work.
When Will Employers Need to Conduct Physical Inspections?
While we believe the government will be reasonable, we also believe that ICE will mandate some sort of end date, by which all employees will need to be reverified, in-person, regardless of a company's individual policy. For example, ICE could announce, on December 31, that the virtual policy will end on February 1, 2021. Simultaneously they could also announce that, by March 30, 2021, all in person inspections will need to be completed for employees whose documents were reviewed and recorded virtually. This would allow employers lead time to begin in person inspections where possible and make alternative arrangements where not.
Get Ready for the Authorized Representative Method
Accordingly, with a required in-person follow-up and the possibility of short timing associated with such a document review, employers should consider phasing out virtual review whenever possible and considering using the Authorized Representative method to complete I-9s. First, the bad news: this method requires significant oversight, infrastructure and tight SOPS. It also holds employers liable for any violations connected with the form or the verification process committed by the Authorized Representative. Now, the good news: the authorized representative method can be a time saver if correctly drafted and implemented carefully. For companies that have hired large numbers of new employees during the course of the pandemic, there may be no other choice but to consider this option due to the lack of HR infrastructure that will be available upon a return to work, not to mention health and safety concerns associated with in-person identity and document reviews. Since the start of COVID-19, the Seyfarth compliance team has crafted, tested, and audited various Authorized Representative models, including those that utilize friends and family members to complete Section 2 of the Form I-9. Anyone considering the use of an authorized representative should consider all the implications carefully with counsel as the actions of the representative are imputed on the company. Additionally, a document "copy" policy (mandating the copying of identity and work eligibility documents), while not required by the regulations, should be mandatory. Compulsory post-verification completion audits are also recommended.
Thinking Out of the Box
It is time that ICE and the U.S. Citizenship and Immigration Service (USCIS) reconsider the in-person physical inspection of documents requirement. While the Form I-9 instructions were updated in 2013 to require the in-person language, the Immigration and Nationality Act (INA) itself does not address whether the attester must be the same person who physically examines the documents in the presence of the hired employee. In light of COVID-19, and the health, safety and the operational concerns businesses are being forced to address, the government should consider alternative, creative, yet compliant I-9 solutions. For example, it's possible to for ICE/USCIS to allow for an in-person review by one party and the attestation to be completed by another, with an attestation that possibly includes a virtual identity check. Furthermore, regulatory change is an another vehicle to consider in 2021 to address this issue and other antiquated Form I-9 requirements.
Originally Published by Seyfarth Shaw, November 2020
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