January 25, 2021

Volume XI, Number 25

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January 25, 2021

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January 22, 2021

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The Pandemic Is Far from Over, but I-9 “Flexibility” Might Be

You’re probably used to having Plan A, Plan B, and a plethora of contingency plans to deal with the many challenges posed by the pandemic. Because the government has not decided whether to extend the “flexibility” given to employers with respect to the verification of I-9 documents, employers might need to be ready for the procedures to return to “normal.”

Since March, US Immigration and Customs Enforcement (ICE) has allowed employers operating remotely due to COVID-19 concerns to verify I-9 documents that were not presented in person. Specifically, ICE relaxed this requirement to permit employers to (1) inspect the Section 2 documents remotely (e.g., over Zoom or video link, or by email, fax, etc.); and (2) obtain, inspect, and retain copies of those documents within three business days from the date that particular employee physically returned to the workplace. Employers who sought to use this flexibility in the inspection procedure needed written documentation of their remote onboarding and telework policy for each employee for whom this procedure was used. Once “normal operations” were restored such that employers could then physically inspect the documents, they had to view the originals of the documents within three business days of those employees’ reporting to work in person. Employers were instructed to enter “COVID-19” as the reason for the delay in the physical inspection of the documents. Employers were then to update Section 2 by adding “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the I-9 form or to Section 3, if appropriate.

What should employers do if the employee who conducted the virtual inspection is no longer available and cannot do the physical inspection? If that happens, then the employee conducting the in-person inspection should complete a new second page of Section 2, attach that to the old I-9, and sign the verification.

What if the documents presented through remote means are now lost or unavailable such that the employee cannot present them for physical inspection? Should that happen, the employee should complete a totally new I-9 form and present any acceptable List A, B, or C documents. The remote hire date would be used on the new form, and the new I-9 would be attached to the old one with a note indicating that the original documents were no longer available at the time of physical inspection.

ICE has extended these flexible procedures numerous times over the past few months. However, under the most recent extension, these procedures are scheduled to end on November 19, 2020. ICE has not yet indicated whether another extension will be granted. So what does this mean? If the extension is renewed, then employers can still use remote procedures to verify the documents and conduct reverifications as employees return to work. If it is not renewed, then employers must be immediately prepared to return to the normal procedures for verifying I-9 documents in person.

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© 2020 Jones Walker LLPNational Law Review, Volume X, Number 322
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About this Author

Laurie M. Riley, Jones Walker, civil rights attorney, employment related litigation lawyer
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Laurie Riley defends employers in civil rights and other employment-related litigation, including litigation under federal laws, such as Title VII, the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and their state law counterparts. She has also represented employers in class action cases involving allegations of institutional discrimination in terms of promotion, discipline, compensation, and termination. Ms. Riley also represents employers involved in administrative proceedings...

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