Act Now on Short DHS Window to Shift Remote Hire Verification

US Immigration and Customs Enforcement said back in 2021 that worksite compliance flexibilities would be temporary. But many employers were still surprised by its recent announcement of an August 30 deadline for in-person review of acceptable proof of identity and employment authorization. This applies to remote employees hired between March 20, 2020 and July 31, 2023.

The deadline doesn’t leave much time for employers to act. It also highlights the need for a more permanent solution—given the number of workers who continue to work remotely following the Covid-19 federal public health emergency that ended May 11.

The Immigration Reform & Control Act of 1986 requires that US employers verify an employee’s identity and authorization to work within the first three days of work for pay. As part of the verification process, the employee completes Section 1 of the Form I-9 Employment Eligibility Verification after accepting the offer of employment, and no later than the first day of work for pay.

The employer, or an authorized representative, then completes Section 2 and a Certification by reviewing the employee’s identity and employment authorization document(s) in person.

Following the arrival of the public health emergency, ICE relaxed I-9 rules by deferring employers’ physical review of employees’ documents and permitting inspection via video link, fax, or email, with the caveat that physical inspection would timely occur after the resumption of normal business operations. ICE has enabled employers to continue with these flexibilities until the earlier of either the impacted employees returning to non-remote work or the ending of the flexibilities by ICE.

Employers that took advantage of the flexibilities and haven’t yet completed in-person inspection of documents for employees hired since March 20, 2020 have until August 30 to do so. The numbers of employees impacted can vary widely.

One employer may only have a handful of employee documents to inspect—another may have thousands. Depending on numbers and resources, some employers may face logistical challenges in meeting the deadline. In those cases, advance planning and strategizing will be critical to:

• Identify all employees onboarded remotely since March 20, 2020 then determine which of those employees have I-9s with the Section 2 Additional Information annotation “Covid-19.”
• Update Section 2 Additional Information (or Section 3 as appropriate) by specifying “documents physically examined” with the date the inspection occurs. Employers may need to rely upon an authorized representative to complete the physical examination. Authorized representatives may include, but are not limited to, notaries, legal representatives, and remote I-9 service providers.

Employers may want to also consider taking advantage of the opportunity to conduct an internal audit of their I-9s and:

• Identify and correct any technical errors
• Identify and correct, to the extent possible, any substantive errors
• Update or implement applicable internal policy and guidance
• Commit to training or corrective action for those responsible for ensuring that I-9s are timely and accurately completed

Failure to comply with IRCA can expose employers to civil penalties as highlighted last January in the Federal Register. These fines may be adjusted up or down based on ICE’s enhancement matrix.

When enacted over 35 years ago, IRCA didn’t contemplate a remote workforce the scale of which we have today. Nor did the technology exist to enable virtual verifications. Over the years, employers have lobbied for change, but there was little forward movement until the arrival of Covid-19.

In its aftermath, employers are eyeing a Department of Homeland Security proposed rule that would empower DHS to authorize new options for examining documents for some or all employers. A final rule is anticipated later this year following DHS’s review of public comments.

It’s unclear at this point whether this will be rolled out initially on a pilot or wider basis. Time will tell. Until then, employers are still subject to IRCA, as antiquated as it may be.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Jennifer Cory is partner at Womble Bond Dickinson and leads the business immigration solutions practice.

Susan Waller Ramos is senior counsel in Womble Bond Dickinson’s immigration solutions practice.

Jeffrey B. Widdison is an immigration attorney at Womble Bond Dickinson.

Write for Us: Author Guidelines