On June 16, 2020, U.S. Immigration and Customs Enforcement (ICE) once again announced a 30-day extension of flexibility for the remote completion of Form I-9 (Employment Eligibility Verification), and a dispensation from the usual rule requiring an in-person review of original documents of an employee’s identity and employment eligibility within three days of hire. The flexibility now runs until July 18th.

Virtual I-9 Flexibility

The Homeland Security Investigation (HSI) unit of ICE, the Department of Homeland Security (DHS) agency that enforces the I-9 requirements and the prohibition against the knowing employment of unauthorized workers, originally announced the relaxation on March 20, as employers were beginning to grapple with COVID-19 work-from-home and shelter-in-place orders. The initial guidance allowed companies to review “Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.”

The caveat here is that virtual flexibility would only be a temporary reprieve; “after normal operations resume” – as stated in the March 20 announcement – the employee would be required to provide original documents in person for inspection by the employer. (On May 14, the agency extended the period of flexibility another 30 days.)

Although welcome, ICE’s latest extension does not clarify many questions raised by employers since publication of the March 20 announcement. Employers were hoping for explanations on what ICE envisioned when the agency stated that the duty to update Section 2 of the virtually initiated I-9s occur in person “after normal operations resume.” Furthermore, ICE notes that “DHS has decided to once again extend this policy for employers operating 100% remotely in light of COVID-19 for an additional 30 days,” thus emphasizing that certain businesses will not be able to avail themselves of this flexibility.

To be sure, the March 20 announcement noted that this “provision only applies to employers and workplaces that are operating remotely[,]” and that if “there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification (italics in original).”

Clearly, ICE’s reasons for announcing on March 20 that it would permit virtual I-9 completions were based on public health concerns and the business reality of widespread office closures. These concerns persist as employers now plan to reopen offices under a “new normal” resumption of operations. They are carefully developing phased return-to-work (RTW) protocols that comply with CDC guidelines and local rules. (For a helpful e-learning training program on safe RTW protocols, employers need look no further than, “SAFE RETURN: COVID-19 Return to Work Training,” in this introductory demo video from our Seyfarth AT WORK colleagues.) Employers (and ICE) should also expect to receive guidance on the necessary precautions for safe reopening from the U.S. Department of Labor, according to this recently released report from the Office of Inspector General.

ICE’s March 20 announcement offered a note of prosecutorial restraint (“if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis”). Thus, it appears (and we hope) that HSI will be reasonable in future reviews focusing on the actions taken once employees are back to work and the physical inspection is completed. We have been able to confirm that HSI understands that RTW will be complicated, and accordingly, it will be important for companies to memorialize their policies and guidance as part of a historical record that could prove beneficial during any future audits. The resumption of normal operations will vary widely among industries, business sectors, and the incidence of COVID-19 diagnoses. The definition of “normal operations” will surely vary as the new normal begins to take shape.

We expect RTW will entail a phased process that will vary by employer and circumstances, and thus allow a rolling compliance period for Section 2 updating as successive waves of employees return to the worksite. In the meantime, as we will explain in our upcoming I-9 compliance webinar on June 29, subscribe to our blog for more details, employers will need to document the sequence of steps of their own reopening in order to demonstrate rolling compliance in the event of a future government Form I-9 audit.

Finally, employers need additional guidance on how to complete updated Section 2s when employees return to work.  It will be critical to ensure this portion of the process is completed correctly. Employers also need to plan for scenarios where new hires remain remote. We expect that USCIS, in conjunction with ICE, will release an updated Q&A shortly but companies should not wait to configure processes to complete the Forms.

Authorized Representative as an Alternative

Many businesses decided early on that virtual I-9 completion was too cumbersome, or are now changing course in light of extended work-from-home decisions, as well as health and safety concerns from those charged with in-person I-9 inspection. These employers stayed with what has long been allowed, namely, an “Authorized Representative” model whereby an agent in the presence of the employee completed the I-9 and inspected original documents in person on behalf of the employer. Given the fear and stress of COVID-19, however, many employers encouraged remote employees to engage a “friends and family” Authorized Representative.

The Authorized Representative process requires careful consideration of logistics and compliance obligations, because the employer is responsible for any errors or violations of the representative. Those that implemented this option early on without the ability review the process carefully, now may need to consider what remedial actions should take place. In addition to a carefully crafted process that considers your current I-9 process (electronic vs. paper, E-Verify, etc.) another necessity for the Authorized Representative Model is a secondary review by an HR team member.

Whether relying on ICE flexibility protocols or the Authorized-Representative approach, employers should consider whether to conduct an I-9 compliance review, and take any corrective actions as soon as possible, i.e., before ICE resumes its “normal operations” of serving I-9 Notices of Inspection (NOIs).

ICE Notices of Investigations

Lastly, in March 2020 ICE issued numerous I-9 NOIs and served them on employers around the country. For employers who were served notices but have not responded within the original 60-day extension, they now have until July 19 to respond.

While not explicitly stated in the extension, we understand that no new NOIs will be issued at the present time. We also understand that USCIS will soon be updating their Q & As on DHS’s virtual I-9 flexibility policy. Our hope is that USCIS will clarify that rolling I-9 updates will be allowed as groups of employees return to work in phases over time, and outline the Form I-9 particulars regarding Section 2 completion when returning to work.


E-Verify participants who meet ICE’s flexibility criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire

* * *

For questions on Form I-9, Notice of Investigations, or E-Verify compliance, contact your Seyfarth relationship attorney or the authors, Dawn Lurie, at dlurie@seyfarth.com, and Angelo A. Paparelli at apaparelli@seyfarth.com .