ICE Further Extends Interim COVID-19 Protections for Form I-9 Compliance Through August 19

A closer look

U.S. Immigration and Customs Enforcement (ICE) announced today that it is extending for another 30 days, or until August 19, 2020, 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.

ICE also reiterated the announcement it made last month that after July 19, it would no longer be providing employers with extensions to respond to Notices of Inspection received during March.

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 3 business days of the start date.

The DHS 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 originally to be in effect through May 19, 2020 and were subsequently extended twice, most recently through July 19, 2020. These procedures are being further extended again in light of the ongoing emergency. They are expected to remain in place through the extended date or until 3 days after the national emergency is over, whichever comes first. Further extensions are possible depending on the COVID-19 emergency.

No further extensions of time to respond to I-9 audits

ICE’s announcement reiterates the agency’s prior statement that after July 19, 2020, it would not be providing employers with any more time to respond to Notices of Inspection served during the month of March. At the onset of the COVID-19 emergency, ICE had indicated that employers who received a NOI in March 2020 and had not yet responded to the audit would be provided an automatic 60-day extension of time to respond. This accommodation was extended in both May and June for an additional 30 days. Last month, however, ICE indicated that the June extension would be the last. 

What to expect after the emergency is over

Once normal operations resume, employers will need to physically inspect documents within 3 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