Articles Discussing Employing Immigrants.

Dear Littler:  We are a multi-state manufacturing company with facilities throughout the United States.  Like many companies, we have experienced a great deal of employee turnover in the last few years.  Many of our employees are immigrants. As we are advertising for and hiring new employees, can we require

The U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), recently extended until July 31, 2023, the temporary policy allowing remote verification of Form I-9 documents for employees working exclusively in remote settings due to COVID-19–related precautions.

In 1986, the Immigration and Nationality Act (“INA”) was amended to require all employers to verify the employment eligibility of all newly hired workers. The regulations interpreting the INA require employers to physically inspect the documents employees present as evidence of employment authorization.

On March 20, 2020, ICE suspended the physical inspection requirement. The requirement was suspended to accommodate employers facing COVID-19 pandemic lockdowns and the proliferation of remote work. ICE permitted employers to inspect I-9 documents over video link, fax, or email, and obtain, inspect, and retain copies of the documents within three business days of hire. In its announcement, ICE warned that these changes were to be temporary. ICE advised that at the conclusion of the pandemic, employers would be required to physically inspect the employment eligibility documents for all employees hired under remote inspection. ICE threatened that employers that did not physically inspect employment eligibility documents within three days after the expiration date of the temporary rule change would face fines and other penalties.

ICE has extended the expiration date of the remote verification rule change several times. Most recently, on October 11, 2022, ICE extended the pandemic accommodation until July 31, 2023. However, in the press release announcing the extension, ICE hints that this may be the last extension. The press release states:

“Employers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.”

While it would seem that commencing in-person I-9 document verification now would be prudent, any employer contemplating taking such an action should consult counsel and tread very carefully. Employers have no authority to demand the production of I-9 documents while the accommodation is in place. Employees may greet such a request with hostility, see it as a threat to their continued employment, or assert that it creates some kind of illegal harassment or discrimination.