Navigating Virtual Verification and Interim Rules for the Form I-9

Dana Wazny | August 25th, 2020


If you have had trouble keeping up with all the changes related to managing Form I-9 completion in the midst of a pandemic, you are not alone. Requirements for remote verification have evolved since they were first introduced in late March in response to COVID-19. And the USCIS is now issuing an interim solution to help address the delayed issuance of Employment Authorization Document (EAD) cards for approved foreign nationals so they can complete the Form I-9 verification process and get to work.

Extension of the Virtual Verification Process

As noted in recent announcements to our clients, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) issued temporary guidance due to ongoing precautions related to COVID-19 allowing remote inspection of Form I-9 documents via email, video, secure upload, etc. The DHS recently granted an additional extension of this policy for employers and workplaces that operate remotely until September 19. With that said, this virtual verification process was only intended to be temporary, and employers should be mindful of the requirement to conduct a physical inspection of the documents within three days once “normal business operations resume” (noted, dated and initialed in Section 2). Additionally, copies of all documents inspected remotely should be retained.

Updated Guidance on Notating Form I-9s

Originally, the United States Citizenship and Immigration Services (USCIS) indicated that employers should enter “COVID-19” in the Additional Information field of Section 2 of the Form I-9. However, this has been updated to specify that employers “may indicate that remote inspection was completed and when” as directed in the samples provided in its list of COVID-19 Questions and Answers. It is noteworthy that the USCIS clarifies these samples should be used in assisting employers in completing future I-9s in the instance of remote verification due to COVID-19, but they are not required to update I-9s notated differently after-the-fact. Once physical inspection is conducted after normal operations resume, employers should then write “COVID-19” in the Additional Information section to memorialize the change.

Designating an Authorized Representative

There is another option provided by the DHS allowing employers to use an authorized representative, which can be any person (e.g., friend, neighbor), to conduct the in-person verification as a proxy to meet with the employee, review the documents, complete, and sign Section 2 of the form. Note that this inspection must be done physically, as the USCIS expressly states on the I-9 Central website that online audio-video conference technology is not acceptable in this case. Although this in-person inspection relieves the employer of any follow-up requirements after the period of remote verification ends, proceed with caution with this method since employers are still liable for any errors, omissions, or issues during the Form I-9 completion process.

How to Handle Expired List B Documents

Given the continuing state of emergency due to the pandemic, the USCIS has offered suggestions for employers in handling expired documents that are intended to establish an individual’s identity in Section 2 of the Form I-9. Primarily this refers to documents such as driver’s licenses and government-issued ID cards. Employers are encouraged to verify whether their state has automatically extended the expiration dates of such identification cards by checking their state Department of Motor Vehicles or Motor Vehicles Administration website. The revised guidance instructs employers to enter “COVID-19 EXT” in the Additional Information section in this case.

Similar to the virtual verification process, once normal operations resume, the unexpired document information should be updated in Section 2 with a note in the Additional Information section to indicate “COVID-19,” in addition to initialing and dating the change. If the physical inspection is conducted by someone different than the individual who conducted the remote inspection, that person’s full name and title should be included in the Additional Info section.

 Interim Solution for Approved Foreign Nationals Awaiting EAD Cards

Due to COVID-19, the issuance of Employment Authorization Document (EAD) cards for some 75,000 foreign nationals with approved employment authorization applications have been severely delayed. While they await the issuance of the EAD cards, these foreign nationals have been unable to complete the Form I-9 employment verification process and, therefore, unable to work. In lieu of the EAD card, the USCIS announced it will allow employers to accept the EAD approval notice (Form I-797 Notice of Action) as a List C document until December 1, 2020. [Employers must ensure that the Notice of Action date is within the range of December 1, 2019, through August 20, 2020, in order to be valid.]

Despite this interim relief, more delays could be on the horizon if emergency funding is not granted to avoid furloughs of USCIS staff in the immediate future due to budget shortfalls. 

Dana Wazny

Legal Analyst, Product Compliance