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Albany Legal Blog

The I-9 and COVID

On Behalf of | Feb 17, 2023 | Immigration

The Form I-9, Employment Eligibility Verification (“Form I-9”), is three (3) pages long.  The basic instructions are fifteen (15) pages long.  The Handbook for Employers (M-274), which is the Department of Homeland Security’s (“DHS”) guidance for completing this “simple” three-page form, if you were to print it out in its entirety, is currently one hundred and nineteen (119) pages.[1]  And, as if that wasn’t bad enough, in the height of the COVID pandemic, DHS came out with multiple iterations of confusing guidance as to how to verify new employees (or to re-verify current employees who needed to be reverified) who were not physically present at the employer’s place of business.

Indeed, when we were in the height of the pandemic, I would get calls seemingly every day from business clients asking for advice on how to properly complete (or update) the Form I-9 for their new hires, or current employees for which employment eligibility needed to be re-verified.[2]  And none of this was to be taken lightly given the fact that a lack of compliance and completion of the physical inspection could result in significant Form I-9 related fines if an employer was subject to a Form I-9 inspection.

As a reminder, Form I-9 is used by employers to verify the identity and employment authorization of individuals hired for employment in the United States. All United States employers are required to ensure the proper completion of the I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens alike. The I-9 is required to be completed by both employees and employers (or authorized representatives of the employer).

As a rule, the employment verification process requires that the employee be in the presence of the employer’s representative, who must review the employee’s execution of the I-9 form and must view the verification documents presented by the employee and compare any identification information on the documents to the employee.  COVID changed that.  On March 20, 2020, DHS announced some flexibility in requirements for I-9 compliance during the pandemic. DHS subsequently extended its flexibility in rules on multiple occasions throughout 2020, 2021, 2022, and 2023, with the latest extension announced in October 2022, which extended the flexibilities in rules related to Form I-9 compliance until July 31, 2023.

Recently, the Biden Administration announced plans to end the nation’s pandemic-related health emergency on May 11, 2023. This announcement suggests that the government believes the pandemic has entered a less-critical phase.  However, the Administration has not changed the current “flexibility” as to completing the Form I-9.  So, what are the current temporary “virtual” options for employers to verify remote workers’ identities and eligibility?

Well, as a starting point, the requirement that an employer complete a Form I-9 (and E-Verify as well, if applicable) has never been suspended.  As such, all new hires must complete Section 1 of the Form I-9 on or before their first date of work, the employer must complete Section 2 of the Form I-9 after reviewing original documents from the employee, and (3) the employer must then complete Section 3 of the Form I-9 (or otherwise appropriately update the Form I-9 if it is reverifying the continued employment eligibility of a current employee).

But while health the restrictions associated with the pandemic are winding down, the pandemic’s influence over how employers and their employees are working (e.g., in person, remote, hybrid), remain, and this may be the case for some time. While many businesses have their brought workers back to the office, others have adopted hybrid work schedules, while still others allow some or all employees to continue to work from home all of the time.

Given this, and given the current and continued flexibilities in the I-9 employment verification process, there are three (3) best practices for completing in-person or virtual document reviews:

  1. Traditional In-Person Employee / Employer Document Review. Employers returning to in-office staffing without pandemic-related precautions must complete in-person I-9 document reviews with all new (or existing, in reverification cases) employees.
  2. Remote Hire Document Review. This option requires an in-person document review for on-boarding all new remote hires. However, the employer may designate a third party as their agent to conduct the in-person document verification of the remote employee.
  3. Employer’s Electronic Document Review. This is where the employer reviews the employee’s identity and employment authorization documents electronically, not in the employee’s physical presence, but rather via video (e.g., Zoom, Teams), facsimile, email, or some other electronic means.  Additional requirements include that the employer conduct an in-person meeting with the employee at some future date.

To say that all of this has made a confusing process even more confusing is an understatement to say the least. While the current extension for the third option noted above expires on July 31, 2023, employers (and to an extent the practitioners that represent them) are hopeful that DHS will make the virtual option permanent.  DHS announced its intent to do so in the Federal Register in November, 2022 and is currently reviewing public comments.

At the same time, U.S. Immigration & Customs Enforcement (“ICE”) has increased its investigations and audits of Form I-9 compliance as the pandemic subsides.  Employers should take great care to understand this overcomplicated process as there are significant fines and penalties for substantive (and technical) errors on the Form I-9.

[1]  I remember the good old days when the guidance was a mere sixty (60) or so pages.

[2]  Their concerns were compounded in some instances when their employees were in a visa category that required additional filings with the U.S. Department of Labor (“DOL”) and U.S. Citizenship and Immigration Services (“USCIS”) because their visa category was location specific as to their work.