November 8, 2022

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With Immigrations and Customs Enforcement (ICE) once again extending its policy for remote examination of the employment eligibility verification process (Form I-9), many employers once again question whether this policy will see an end. This question proves particularly crucial because it would determine the employer’s responsibility concerning physical inspections that must take place within three business days of the policy’s end date.

Since 1986, the Immigration and Nationality Act (INA) has required employers to complete Form I-9s to verify their new hires’ employment eligibility. Under federal regulations, employers must physically verify employees’ documents to satisfy these requirements.

However, to assist employers with utilizing suitable safety precautions in light of the COVID-19 pandemic, ICE temporarily suspended the physical inspection requirement. This temporary policy allowed employers to inspect employees’ identity and work authorization documentation remotely. Remote inspections included electronic methods such as email, fax, or video call.

Employers under this policy must complete the process within three days and retain copies of the documentation. In addition, ICE has warned that the policy is temporary. Furthermore, employers must complete the physical inspection of employee documentation within three days of the policy’s expiration or face potential penalties.

This policy underwent several extensions since its issuance on March 20, 2020. For example, it recently extended from October 31, 2022, to July 31, 2023. However, ICE’s press release regarding the extension once again indicated that employers should prepare for the end of these flexibilities.

While employers should continue preparing for the potential end of these flexibilities, they must also be vigilant of their safety precautions and their remote workforce’s feelings on the issue. As long as the policy for remote verification remains in place, employees may allege harassment or discrimination should an employer take adverse action due to non-compliance with a physical verification policy.

The Department of Homeland Security (DHS) may establish a permanent remote examination policy before the expiration of these temporary measures. Unfortunately, this is far from certain.

What is certain is that changes like these will continue. Employers should consider investing in an electronic I-9 management tool to keep up and ensure ongoing compliance. This tool can provide employers with step-by-step guidance and ensure secure and convenient storage of forms and documentation.

Automate your employment eligibility verification today with the ensured compliance of I-9 Compliance.

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