Questions and Answers - The End of the COVID-19 Virtual I-9 Flexibilities

On May 11, 2023, Equifax conducted a live webinar on the recently announced termination of the COVID-19 Virtual I-9 flexibilities, which will officially end on July 31, 2023. We also discussed the new August 30, 2023 deadline for conducting physical in-person inspections when required by the rules. 

During the presentation, we received many excellent questions from attendees relating to this breaking news, with a particular emphasis on how to conduct the physical inspections. Below are some of the insights and suggestions for the most frequently asked questions. I have included source materials where available. 

Please note that the information provided is intended for educational purposes only, and should not be construed as legal advice nor as a substitute for legal counsel. If you have questions concerning how I-9 and E-Verify rules apply to your specific situation, please seek legal advice from an attorney who is familiar with all of the facts of your situation.

Big Picture - Change in Virtual I-9 Policy

1. Can you describe the change in policy that is occurring on July 31, 2023? 

U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE) will officially end their so-called “Virtual I-9” flexibilities that were implemented at the beginning of the pandemic. This relaxed Form I-9 rule enabled qualifying employers to remotely inspect an employee’s identity and work authorization documents (through video, email, fax, etc.) followed by an in-person inspection when normal operations resume. 

The government agencies also announced that employers will have an additional 30 days beyond the July 31st sunset date (i.e., until August 30, 2023) to conduct any necessary physical in-person inspections which have not already been completed. Review the official ICE announcement.

2. How does the end of the COVID-19 Virtual I-9 flexibilities impact an employer’s I-9 process moving forward for new hires working remotely? What do we do if we are 100% remote?

As of August 1, 2023, employers with remote hires may no longer review identity and work authorization documents in a virtual fashion due to COVID-19 precautions. Employers with remote hires may designate an authorized representative to meet in-person with the employee and complete Section 2 (or Section 3 for reverifications) on the employer’s behalf. 

According to USCIS’s Form I-9 instructions, an authorized representative can be any person you designate to complete and sign the Form I-9 on your behalf. However, employers are liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on your behalf. Therefore, many employers may want to use a reputable network of trained I-9 completers to help reduce the potential regulatory risk. 

3. That August 30th deadline is concerning. Do I need to conduct a physical inspection of all our remote employees who were hired during the pandemic? We used a “friends and family” authorized representative process. 

No, employers must only conduct physical inspections of I-9 documents that were “virtually” inspected during the pandemic through video, email, fax, or secure upload. If you used an in-person authorized representative process when you completed the I-9 OR you have already met in-person with your employee to review documents after the fact, then you DO NOT need to conduct another physical inspection by August 30, 2023. 

4. What is the audit risk for I-9s that are not physically inspected? 

ICE may treat the lack of an in-person document verification and attestation as a substantive violation, which can incur a fine of $272 to $2,701per form according to the latest federal guidelines for civil monetary penalties.

In addition, in their recent FAQs, USCIS noted that “an employer cannot retain an employee who the employer knows is not authorized to work in the United States or that does not fulfill Form I-9 documentary requirements. This includes presenting documentation for in-person physical examination.” 

Employers are strongly encouraged to speak with their HR, counsel and other professionals regarding audit risk and options before making any employment decisions. 

Preparing for Physical Inspections

5. How can we determine which I-9s were completed using a virtual process? 

If you’re using an Equifax I-9 product, please review our COVID-19 Virtual Inspection Updates page for detailed instructions on how to help identify I-9s that were completed using our special “virtual” I-9 functionalities. For further instructions, feel free to contact Workforce Solutions Support (WSS). 

If you weren’t using the virtual functionality or completed these I-9s through some other process, you’ll need to carefully review the I-9s to see if you can make that determination through other means. The following suggestions may be helpful:

• Check each I-9 to see if “COVID-19” or other similar annotation was entered in the Additional Information box in Section 2 or in the margins

• Look for any records (emails, announcements, etc.) of when you began using the virtual inspection process at your organization, which might give you the start date of potential I-9s needing inspection

• Look for any records (emails, announcements, etc.) of when you stopped using the virtual inspection process at your organization

• Identify who signed or completed the Section 2s or Section 3s and compare their location with the new hire’s location (i.e., to see if they are in different states or otherwise far apart) 

6. What happens if the worker is no longer employed by us, but we did a virtual inspection?

According to the USCIS FAQs, if the employee separates before the physical inspection can be completed, include an explanation with the I-9 and the date of the employee’s separation. 

Physical Inspection Process

7. How do we complete the physical inspection process? Does the process change if a different individual meets with the employee to complete the in-person physical inspection? 

A physical in-person inspection involves the reviewer examining the I-9 documents presented by the employee to determine if they appear to be genuine and relate to the employee presenting them. This is the same “review process” that an employer typically completes when completing Section 2 for a new hire or Section 3 for a reverification per the Form I-9 instructions. 

Important: if the physical inspection for a new hire is being conducted by a different individual (which is often the case), ICE has specifically noted that the employer should complete a new Section 2, which would involve the reviewer entering all of the document information into Section 2 and signing the form. See here (top of page 2) for the ICE COVID-19 FAQ on using a different completer. 

The Equifax I-9 Anywhere service may help facilitate this process through our nationwide network of trained I-9 completers. For more information, please visit this link.

If the physical inspection is conducted by the same individual who previously reviewed the I-9 virtually, the employer may simply update the date the physical inspection was performed, followed by the reviewer’s initials. Here is a mockup from USCIS which shows how the Form I-9 may be annotated. If you have questions on how to update an I-9 in an Equifax product (when the same completer is involved), please contact Workforce Solutions Support (WSS).

8. Does the I-9 documentation have to be the same documents that were provided virtually? 

No, according to the USCIS FAQs, the employee may choose to present different documents (one from List A or one from List B in combination with one from List C) at the time of the physical inspection. If different documents are presented, USCIS prefers that you complete a new Section 2 with the document information.

Since ICE also prefers a new Section 2 if the document completer is different (see answer to question 7 above), employers may find it advantageous to complete new I-9s across the board for physical inspections to help ensure that the employee is afforded the opportunity to present a document of his or her choosing. 

9. Are there any best practices we should consider for conducting the physical inspections? 

Employers should consider drafting a communication plan to notify impacted employees of the need for a physical I-9 document inspection. In doing so, employers should explain the process, the timelines, and also provide a point of contact if questions arise.  

If a new I-9 is completed, the employer should keep/retain both the original virtual I-9 and the follow-up physical inspection I-9 together. Having both I-9s will help explain why the second I-9 was completed at a much later date. 

Lastly, the new I-9 typically should not be submitted to E-Verify (assuming that the individual was previously submitted when the virtual I-9 was completed). See the last FAQ here which mentions that a new E-Verify should not be created.    

10. Can you provide the links to the government’s physical inspection guidance?

The two primary links have been inserted throughout our answers to this FAQ and are reproduced here:

• https://www.ice.gov/doclib/coronavirus/DHSI-9extensionGuidance.pdf
  ICE FAQ (important with respect to using a different completer)

• https://www.uscis.gov/i-9-central/form-i-9-related-news/questions-and-answers-related-to-covid-19
  USCIS FAQ (most of the guidance is available here)  

For more information on the end of COVID-19 Form I-9 flexibilities

Watch the aforementioned on-demand webinar with me, John Fay. 

• Learn more about the new timeline for physical inspections of virtual verifications completed during the pandemic

• Discover steps you can take now to help implement a plan for conducting physical inspections at your organization 

• See me answer other burning I-9 questions

Sign up for our next webinar where I will go into more detail about documentation for Form I-9s and pitfalls to try to avoid. 

The information provided is intended as general guidance and is not intended to convey any tax, benefits, or legal advice. For information pertaining to your company and its specific facts and needs, please consult your own tax advisor or legal counsel.  Equifax Workforce Solutions provides services that can help employers reduce their compliance risks. Details on our provision of these services and related support will be contained in your services agreement. Links to sources may be to third party sites. We have no control over and assume no responsibility for the content, privacy policies or practices of any third party sites or services.