The Virtual Form I-9 Is a Land of Confusion for Employers

For all the happy hoo-hah last summer, with HR professionals throughout the USA cheering as USCIS dispatched the dreaded in-person remote-employee Form I-9 meeting — for all of that, there are still a few problems for many employers.

Problem 1: E-Verify Membership

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. E-Verify is voluntary; not everybody is a customer, and some who are might not be "in good standing."

Problem 2: The New Process Can Be More Time-Consuming

Even if you qualify, the new methodology might be more irksome than the old. The new employee still has to complete Section 1, then virtually deliver to the new employer (through some methodology or other) images of the document(s) they'll be presenting — front AND back. Then HR has to set up a Zoom or Teams meeting in which the employee presents the documents to the camera. The first twenty Zooms are bearable; the process soon loses the aroma of novelty.

Problem 3: Document Retention

You are now required to retain, front AND back, copies of every List A, or B & C document presented, including "receipts for replacement" — rather than just the three List A photo-match documents, as previously was the case. How much HR time are we up to now?

Problem 4: Where and When to Deploy

Per USCIS: "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." You can offer it for remote hires only, while continuing physical examination for onsite or hybrid employees — so long as the choice isn't discriminatory.

Problem 5: Employee Choice

Whatever you decide, the employee can decide otherwise: "Qualified employers must allow employees who are unable or unwilling to submit documentation using the alternative procedure to submit documentation for physical examination."

Problem 6: It's a Pilot Program

"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." In other words, it could disappear just as suddenly as it appeared.

Problem 7: Increased ICE Audits

Form I-9 ICE audits will, by necessity, be increasing as a result of this Virtual I-9 Policy — and those audits will randomly include E-Verify enrollees in good standing. Per the Secretary of Homeland Security: "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."

Whether an E-Verify participant or not, if ever there was a time for employers to be afraid — very afraid — in the Form I-9 world, in my opinion it just might be now.