You know, for all the happy hoo-hah last summer, with Human Resource Professionals throughout the USA screaming “Kill It!!!” like World Wrestling fans hooting down the dark-masked villain as USCIS dispatched the dreaded in-person remote employee Form I-9 meeting with a single blow from its dubious regulatory arsenal – for all of that, there’s still a few problems for many of you employers out there. As Phil Collins put it in the Genesis song, “Can’t you see this is a land of confusion?”
Problem 1 is, you’ve got to be an E-Verify customer in good standing to even consider using the currently allowed “virtual” I-9 Section 2 process, and, being a voluntary Federal program, not everybody IS a customer, and some who are might not be “in good standing”.
Problem 2 is, even if you meet the requirements in Problem 1 above, the newly-allowed methodology might be more irksome and time-consuming than the old; New Employee still has to complete Section 1 of the I-9, and then virtually deliver to New Employer through some methodology or other images of the document(s) he’ll be presenting – front AND back, mind you – and then HR has to set up some kind of Zoom or Teams meeting with said employee who is then required to, in hand, present his selected document(s) – front AND back, mind you – to the camera.
I have personally experienced trying to get a good, non-shaky, look at that or those, telling employee to move it up, now down, a little left, so I could read the doc numbers and expiration dates and compare the overall images to the ones I had initially received via upload or email. The first twenty or so Zooms are bearable, I suppose, but the process soon loses the delicious aroma of novelty.
Problem 3 : Now you are required to retain, front AND back mind you, copies of every List A, or B & C document presented, including “receipts for replacement”.
How much HR time are we up to now; is anybody counting? And we know HR does not have just a whole lot of bandwidth to fritter away in additional compliance exercises.
Problem 4 is deciding where and when you are going to deploy this wondrous new weapon for I-9 completion. You could just use it for your actual remote-employee hires who will never darken the doors of your office(s); or, you could do those, plus selected worksites; OR, you could offer it across the board to ALL of your new hires, remote or office-bound, or the hybrids – so long as all your worksites are using E-Verify post I-9.
Problem 4 is deciding where and when you are going to deploy this wondrous new weapon for I-9 completion. You could just use it for your actual remote-employee hires who will never darken the doors of your office(s); or, you could do those, plus selected worksites; OR, you could offer it across the board to ALL of your new hires, remote or office-bound, or the hybrids – so long as all your worksites are using E-Verify post I-9. Let’s examine USCIS regulations on this :
“A qualified employer does not need to use the alternative procedure, but if a qualified employer chooses to offer the alternative procedure to some employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site. However, a qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic. Under no circumstances can employers unlawfully discriminate, such as by deciding who is eligible for the alternative procedure based on a protected characteristic.”
So, whatever you decide to do, you are required to do that across the board, but there is a
Problem 5 : Whatever you decide to do, the employee can, if he wishes, decide otherwise; again, from USCIS in the Federal Register :
“qualified employers must allow employees who are unable or unwilling to submit documentation using the alternative procedure to submit documentation for physical examination. Nothing in the alternative procedure prevents an employer from physically examining documents when requested to do so by an employee.”
That’s all fine and well if (a) you don’t hire any true remote employees, and/or (b) all your offices are open for HR business or have re-opened post-covid for same. BUT, (a) if you do have true remote new hires, who “are unable or unwilling to submit documentation using the alternative procedure” then you’re right back to Square 1 of the whole remote-hire Form I-9 dilemma, and somebody, most likely your overtaxed HR Department, will have to arrange for a qualified I-9 Section 2 signatory to personally and physically meet with the employ in the wilds of the Northern Rockies or wherever he resides, or (b) if your administrative office(s) are closed then your local HR will have to arrange to personally and physically meet with the local employee, herself.
Now, let’s say that none of the above are problems for you, and this is all extremely hunky-dory and you just LOVE this new allowance for virtual Forms I-9 Sections 2. But wait, there’s more! And don’t count your chickens just yet, because
Problem 6 : this is a pilot program, and could disappear just as suddenly as it appeared last summer : “The alternative procedure described in this document does not expire. However, DHS may amend or cancel it upon the Secretary’s determination that doing so is necessary to maintain an equivalent level of security…”
And, on that note, we finally arrive at Problem 7. A great deal of this new-fangled I-9 regulatory switcheroo was brought about by the Covid crisis of 2020 and ongoing, and, while little good can be said for that whole trauma, since that day in March of 2020 ICE worksite enforcement actions have mercifully gone from constant and increasing to virtually non-existent, and that is certainly a positive for employers and their potential monetary liabilities.
Additionally, E-Verify itself has long been deemed to be somewhat of a “safe harbor” for employers enrolled in the program, and faithfully complying with its rules and regs.
But now we discover, in this same Federal Register post, that Employer Form I-9 ICE Audits will, by necessity, be increasing, as a RESULT of this Virtual I-9 Policy, and that’s certainly a problem, and, by necessity again, those audits will randomly lasso E-Verify enrolees in good standing, in order to prove up or to disprove the efficacy, security, and employment compliance of this new (pilot) program.
From the Secretary of Homeland Security, in the Federal Register, dated 07/25/2023 : “The INA specifically authorizes DHS, IER, and DOL officers to inspect Forms I–9, including any copies of employee documents retained with the corresponding Form I–9.[23] All employers are subject to audits and investigations. DHS will monitor and evaluate data and information from ICE audits conducted to assess any measurable impacts to system integrity as between the employers that use the alternative procedure and those that continue with physical document inspection.”
Attention should be drawn to the sentence “All employers are subject to audits and investigations.” That is chilling, and implicit in the paragraph is that ICE audits will be done, for this purpose, on a fairly random basis, targeting normal and generally compliant types of employers, rather than as heretofore has been the case, being sparked by suspicious hiring activity, employee complaints, or notoriously non-compliant industries and sectors.
If ever there was a time for employers to be afraid, be very afraid in the Form I-9 world, in my opinion it just might be now.
David Adams
Form I-9 Compliance/Remediation Services
The Form I-9 Company
(P) 325.238.5866
Visit us at The Form I-9 Company