Q&A: Recertifying Form I-9s processed under the COVID exception

We are working on developing a process to recertify the I-9s processed under the COVID exception. If an employee is remote, can we alter the I-9 form to allow for electronic signatures?

All U.S. employers are required to complete Form I-9 for employees hired to work in the United States. Within 72 hours of hire, employees must present their employer with acceptable identity and employment authorization documents, and the employer must physically inspect the documents to determine whether they’re genuine and belong to the employees.

Temporary I-9 flexibilities

The Temporary I-9 Flexibilities, which began at the onset of the pandemic (2020), eased the employer requirement to conduct in-person, physical inspections of identity and work authorization documents, allowing employers to review the documents remotely (via email, video, fax, etc.) while taking COVID-19 precautions. Immigration and Customs Enforcement (ICE) indicated that once normal business operations resumed or the flexibilities ended, employees who were onboarded using remote verification were to report to their employer within three business days for in-person verification.

The latest guidance states that if an employee is hired on or after April 1, 2021 and works exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the physical inspection requirements associated with Form I-9. This condition remains until the remote worker undertakes “non-remote employment on a regular, consistent or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.”

ICE has confirmed the Form I-9 COVID flexibilities will end on July 31, 2023, but will grant employers 30 days to ensure compliance with the requirements. By August 30, 2023, employers must physically inspect I-9 documents for all remote employees hired on or after March 20, 2020.

When notating the form for remote employees, employers are required to enter “COVID-19” as the reason for the physical inspection delay in the Form I-9 Section 2 “Additional Information” field once physical inspection takes place. Once the documents have been physically inspected, the employer should add a “documents physically examined” notation with the date of inspection to the Form I-9 Section 2 “Additional Information” field. For more information, see “Form I-9 Examples Related to Temporary COVID-19 Policies” on the United States Citizenship and Immigration Service’s website.

The USCIS “Handbook for Employers” (M-274) makes clear that employers “.. may designate, hire, or contract with any person you choose to complete, update or make corrections to Section 2 or 3 on your behalf. This person is known as your authorized representative. The authorized representative must perform all the employer duties described in this handbook, and complete, sign and date Section 2 or 3 on your behalf. You are liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws, committed by your authorized representative.”

Creating an electronic I-9 form

The USCIS Handbook (M-274) also explains Form I-9 requirements and discusses what the electronic Form I-9 should include to be acceptable in section 9.1, online here.

Specifically, the section states:

“9.1 Form I-9 and Storage Systems

USCIS offers a Form I-9 that can be completed on a computer but does not have full electronic capabilities. You may create your own electronic Form I-9 as long as you:

Provide employees instructions for completing the form:

• Create a legible form;
• Do not make changes to the name, content, or sequence of the data elements and instructions we provide on our website;
• Do not insert additional data elements or language; and
• Retain generated forms according to the standards specified in 8 CFR 274a.2(e), (f), (g), (h) and (i), as applicable.

You may also use any commercial computer program or automated data processing system that complies with these standards. Ensure that the program or system does not restrict access or use by a U.S. government agency.”

Regarding electronic signatures, the USCIS Handbook states the following:

“If you complete Form I-9 electronically using an electronic signature, your system for capturing electronic signatures must:

• Allow individuals to acknowledge that they read the attestation;
• Attach the electronic signature to an electronically completed Form I-9;
• Affix the electronic signature at the time of the transaction;
• Create and preserve a record verifying the identity of the person producing the signature;
• Upon the employee’s request, provide a printed confirmation of the transaction; and
• Include a method to acknowledge you have attested to the required information in Section 2.
• If you choose to use an electronic signature to complete Form I-9 but do not comply with these standards, DHS will determine that you have not properly completed Form I-9 and are in violation of section 274A(a)(1)(B) of the INA (8 CFR Part 274a.2(b)(2)).”

So, if your electronic Form I-9 follows/conforms to the above specifications and provides the same information as the printed form provides, it likely would be appropriate since it does not make any changes to the name, content, or sequence of the data elements or instructions. However, you should have an attorney review the electronic form to ensure compliance.

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