Companies Seek Reprieve From In-Person Work Verification Mandate

Employers are urging the Biden administration to temporarily extend pandemic-era remote employment verification options until the completion of a new regulation that would them permanent.

Companies’ ability to complete the I-9 employment verification form remotely was one of the silver linings of Covid workplace disruptions. With that option set to expire later this summer, employers that had adjusted to a new remote reality are sprinting to complete in-person document reviews for scores of workers hired over the past three years.

Failure to complete those in-person reviews before the Aug. 30 deadline for remote, or mostly remote, workers hired over the last three years could mean substantial monetary penalties for the company or even affect its eligibility for federal contracts.

“It’s not like they don’t have three years of worth of data to say this is working,” Emily Dickens, chief of staff and head of public affairs at the Society for Human Resource Management, said of the administration.

The Department of Homeland Security is targeting August for release of new regulations that would authorize alternatives to in-person review of I-9 documents. SHRM, a membership organization of HR professionals, is preparing a letter to the agency asking that current remote verification flexibility be extended until that new rule is issued.

A “stop-start” approach to requirements makes little sense for employers, Dickens said.

Document Inspection

All new hires must fill out a Form I-9 to verify their eligibility to work in the US, regardless of citizenship status. The form requires employers to inspect workers’ documents proving their identity and work authorization—such as a driver’s license, Social Security card, or green card—to verify their authenticity.

Even companies that use the federal E-Verify electronic verification program aren’t exempt from the requirements.

Beginning in March 2020, the DHS allowed virtual inspection of those documents—a practice that private-sector employers had been seeking for years. Businesses could review workers’ documents over a video call, fax, or email.

Employers that fell behind in conducting in-person I-9 reviews over the past three years now are asking dozens of workers who may never have visited the office to come in to complete the process. Others are exploring options such as using third-party vendors or a person designated as an authorized representative to complete the review.

“Are employers struggling to get physical review done? Absolutely,” said Amy Peck, co-lead of the immigration practice group at Jackson Lewis PC. “It is an enormous problem that they are struggling with.”

Although the review itself is fairly brief—about 15-20 minutes per employee—the number of workers involved and range of work locations will create headaches for HR shops, Dickens said.

At some companies, that may mean new hiring is delayed until after their I-9 compliance efforts are completed, she said.

“It’s causing a disruption,” Dickens said. “That’s why we want people to just stop and think, why make a change like this now?”

Lack of Guidance

Companies also are concerned about how Immigration and Customs Enforcement—the DHS subagency that oversees I-9 compliance—will police in-person verification efforts after the August deadline passes, said Eileen Lohmann, a senior associate at Berry Appleman & Leiden LLP.

“The biggest challenge is the lack of information on how ICE will be evaluating companies’ practices during this time,” she said. “There are no examples yet.”

When asked about what discretion the agency will use in auditing employers or assessing penalties, an ICE spokesman referred Bloomberg Law to the agency’s May news release on the requirements.

Employers are “flabbergasted” that a new virtual I-9 rule could be issued just as they’ve made significant efforts to comply with the in-person inspection rules, said Bruce Buchanan, special counsel at Littler Mendelson PC.

Even though ICE has made clear that documents for recent hires will eventually need to reviewed in person, many companies didn’t believe the agency would actually enforce that requirement—until ICE announced that the flexibility would end in August, he said.

“I would say they hadn’t prepared and just didn’t want to believe that they were going to have to do something,” Buchanan said.