Completing I-9s Remotely – Extension set to expire November 19, 2020

by Jennifer Kaiser

In September, ICE announced another extension of the deferred physical presence requirements associated with completing I-9s through November 19, 2020.

As you know, back in March, the Department of Homeland Security (DHS) and US Immigration and Customs Enforcement (ICE) announced guidelines to temporarily ease compliance obligations for employers and workplaces that were operating remotely as a result of the COVID-19 pandemic and the associated isolation orders. There were no exceptions provided for employers with employees physically present at a work location.

Employers that were operating remotely were directed to provide written documentation of their remote onboarding and telework policy for each employee and:

  1. Inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.), AND
  2. Obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2,
  3. Once physical inspection takes place after normal operations resume, employers must enter both “COVID-19” and “documents physically examined” with the date of inspection in the Section 2 Additional Information field (or in section 3 as appropriate.)

There have been several extensions and temporary rules made throughout these last 8 months and now, with the latest extension potentially ending in a little over 2 weeks, ICE has provided us with guidance on how to accurately finalize these I-9 forms within 3 days of an employee’s return to the workplace. For example:

  1. If an employee presents the same Section 2 documents that were valid at the time of hire but are now expired, the employer representative must enter “documents physically examined” with the date of inspection in the Section 2 Additional Information field (or in section 3 as appropriate.)
  2. If an employee has lost the Section 2 documents that they used at the time of hire, they will need to complete a new I-9 form using any valid combination of List A or B and C documents. Complete the new I-9 form as usual and use the same hire date as the remote hire. Then attach the new I-9 form to the original remote inspection I-9 form with a note indicating that the original documents were unavailable.
  3. If the employer representative who conducted the remote verification is unavailable, then a new employer representative must complete a new second page of an I-9 form and attach that to the original remote inspection I-9 form.

Employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.