Tips on Physical Reverification of Virtually Verified Remote Employees

This article is brought to you by FACC Corporate Member Littler and originally appeared on their website on July 14, 2023. 

Authored by Bruce Buchanan, Special Counsel, Nashville. 

As was previously reported, employers have until August 30, 2023, to conduct in-person physical verification of identity and employment eligibility documentation for all employees who were onboarded using remote virtual verification between March 20, 2020 and July 31, 2023. Employers have been raising several questions about this process. The USCIS has provided answers to many of these questions. Below are some questions and answers with some guidance by the USCIS:

Question: Who can be an authorized representative (also referred to as Designated Representative)?

Answer: An authorized representative can be any person you designate to complete, update, or make corrections to Section 2 on your behalf. An authorized representative can be anyone over the age of 18 such as an adult family member, friend, neighbor, another employee (in California, the representative must be a bonded immigration consultant, if acting for compensation).

You are not required to have a contract or other agreement with your authorized representative for Form I-9 purposes. If you choose to use a notary public as an authorized representative, that person is not acting in the capacity of a notary. This person must perform the same required actions to complete the verification process on your behalf as any other authorized representative, including signatures. When acting as an authorized representative, a notary public should not provide a notary seal on Form I-9.

Question: What if the employee for whom the company completed the virtual, remote inspection of their documents has been terminated from the company prior to the completion of the in-person document inspection?

Answer: If the employee terminates before the physical inspection can be completed, include an explanation in the “Additional Information” box in Section 2 on Form I-9 and the date of the employee’s separation.

Question: What if the employee presents a different but still acceptable document at the time of physical inspection?

Answer: If the employee presents acceptable documents for in-person inspection that are different from the ones they presented for remote inspection, the employer should complete Section 2 on a new Form I-9 and attach it to the Form I-9 used for remote inspection.

Question: What if the document was valid during remote inspection and is now expired during physical inspection?

Answer: As long as the employee’s document was unexpired at the time of remote inspection, the employer should not request a new document and can proceed with the physical inspection consistent with Department of Homeland Security guidance.

Question: What if the document was valid during remote inspection but expired during physical inspection and the employee no longer possesses such document?

Answer: If the employee no longer possesses that document, then you need to obtain new documentation that meets I-9 requirements.

Question: What should an employer do when it uses an electronic I-9 provider, which will not allow a designated representative access to the electronic I-9 system?

Answer: If the electronic I-9 provider will not provide a designated representative access to the system, then the company should obtain a paper copy of Section 2 that has been physically verified. Upon receipt, it should upload Section 2 into the electronic I-9 system and retain the hardcopy paper Section 2 of the Form I-9.

Question: If an employee refuses to meet for a physical document inspection at the end of the flexibilities, what should an employer do?

Answer: An employer cannot retain an employee who the employer knows is not authorized to work in the United States or does not fulfill Form I-9 documentary requirements. This includes presenting documentation for in-person physical examination. Employers are required to complete Form I-9 for all new hires, including the requirement to physically examine identity and work authorization documents, subject to proposed rule modifications.

Question: Our company began operating remotely during COVID-19 and will not return to in-person work. Must we still conduct the in-person document inspection for each employee who we hired while using the COVID-19 remote inspection flexibilities?

Answer: Yes. Employers must physically examine documents for those employees who were hired on or after March 20, 2020, and for whom the employer has to date only conducted a remote inspection consistent with the flexibilities.

Question: What should be done if a company misapplied the guidance on which employees may be virtually verified under the March 20, 2020 I-9 flexibilities?

Answer: For the employees hired on or after March 20, 2020 and virtually verified despite the company not being fully remote (or on or after April 1, 2021, the new employee was not fully remote) the Form I-9s should consider to fully complete again – Section 1 and Section 2 because the Form I-9 was completed incorrectly. After both are completed, both old and new Form I-9s should be retained.

Question: Must a company go through E-Verify after completing the physical reverification of a virtually verified employee?

Answer: No, a company should not do so if it had previously done so or the company was not signed up for E-Verify at the time of original remote hire. It would violate the E-Verify rules.

Question: What if the employee changes their immigration status between the time of remote inspection and the in-person inspection?

Answer: If the employee presents original documents for in-person inspection that are different from the ones presented for remote inspection because the employee has a different immigration or U.S. citizenship status and may no longer have the original document presented for remote inspection, then the employer should complete Section 2 on a new Form I-9 and attach it to the Form I-9 used for remote inspection. In the “Additional Information” box in Section 2, one should note the employee changed their immigration status.

Remember, when the March 20, 2020 guidance was issued, it said, “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, there may be room for exceptions if your company ever receives a Notice of Inspection from DHS/ICE.

Employers with questions should contact their immigration attorney.

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