Immigration and Customs Enforcement (ICE) has said it would be flexible about companies doing an in-person inspection of I-9 documents, but as the law firm Jackson Lewis explains, there are a number of pitfalls for employers as businesses are reopening.

Form I-9 requires employers to document that newly hired employees are legally eligible to work in the United States. The law requires that someone at the company physically inspect the documents provided by the employee verifying that eligibility.

For businesses that have been operating with a 100% remote workforce, in-person verification has not been required, but that flexibility will end July 19 unless ICE extends it.

If a business has any employees physically present at the worksite, however, ICE says I-9s have to be verified in person, but that it will evaluate the requirements on a case-by-case basis. But that leaves employers with a lot of questions.

“If only maintenance or security staff are on site, is flexibility available?” attorneys Michael Niefach and Amy Peck offer for example. “If some employees have been on site because they are essential workers, but the newly hired employees are working remotely, is flexibility available? If there is no human resources staff on site and they normally conduct Form I-9 verifications, is flexibility available?”

The attorneys suggest that such flexibility be given in a number of circumstances, considering the COVID-19 risk-benefit analysis, “but the determinations that ICE officers will make are uncertain until ICE starts auditing again,” Niefach and Peck write.

“ICE may very well begin more audits as worksites reopen. Accordingly, it is important to start reinstituting “normal” I-9 process as soon as possible to demonstrate good faith efforts,” they stated.

Niefach and Peck offer a list of steps employers may want to take to demonstrate their good faith efforts.

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