ICE Extends Interim COVID-19 Protections for Form I-9 Compliance Through March 31

A closer look

U.S. Immigration and Customs Enforcement (ICE) announced today that it is extending until March 31, 2021 its relaxed enforcement of the normal requirement to physically inspect the original documents presented by new hires during the I-9 process and thus allow eligible employers to continue to implement remote I-9 verification in certain circumstances during the COVID-19 emergency.

The interim policy and its limits

Under the interim policy, employers with employees working remotely due to COVID-19 will not be required to review identity and employment authorization documents in the employee's physical presence until the emergency is over. This accommodation is not permitted for work places that are not operating entirely remotely and where some employees are still physically reporting to a work location. ICE may also permit the use of these remote verification procedures on a case-by-case basis where newly hired employees are subject to quarantine or lock-down protocols (such as the stay-at-home orders issued by certain state and local governments). Employers taking advantage of these relaxed procedures must provide written documentation of their remote onboarding and telework policy for each employee. 

Employers who are eligible for and elect to use the interim guidelines will be able to inspect Section 2 documents remotely, by video, fax or email, and must retain copies of the documents. The ordinary timelines for I-9 completion remain in effect. Section 1 of the I-9 must be completed by the employee’s start date and Section 2 must be completed within three business days of the start date.

The ICE remote guidelines are not mandatory. Employers may continue to follow standard Form I-9 procedures, including the use of agents to complete verification on the employer’s behalf.

The interim procedures were announced in March 2020 and have been extended several times, most recently through January 31, 2021. The procedures are being extended again in light of the ongoing emergency and are expected to remain in place through the extended date or until three days after the national emergency is over, whichever comes first. Further extensions are possible depending on the COVID-19 emergency.

Please note that these procedures are separate from the U.S. Citizenship and Immigration Services (USCIS) I-9 accommodation first announced in August 2020, which allows employers to accept through February 1, 2021 certain Employment Authorization Document (EAD) approval notices as a List C document when establishing employment verification in the I-9 process. This accommodation was put in place as a part of a settlement reached between the parties in Subramanya, et al., v. USCIS, a class action lawsuit filed against USCIS claiming harm from the recent extensive delays in EAD card issuance.

What to expect after the emergency is over

Once normal operations resume, employers will need to physically inspect documents within three business days for all employees onboarded and I-9'd remotely. Employers should enter "COVID-19" as the reason for the physical inspection delay in the Section 2 additional information field, once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add "documents physically examined" with the date of inspection to the Section 2 additional information field (or Section 3 in reverification situations). 

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen or the firm’s Government Strategies and Compliance Group.