The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have announced yet another extension to flexibility relating to in-person Form I-9 compliance. The policy, which was originally announced on March 19, 2020, was previously set to expire on October 31, 2022. With this new extension, the policy will remain in effect until July 31, 2023.
As discussed in our previous posts on this topic, this flexibility allows employers whose workforce is working remotely to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) and section 274A of the Immigration and Nationality Act. The policy initially applied only to employers and workplaces that were working entirely remotely, with no employees physically reporting to a company location. However, as of April 1, 2021, employees of any company who work exclusively in a remote setting due to their company’s COVID-19 related precautions are temporarily exempt from the Form I-9 physical inspection requirements until they perform non-remote work on a “regular, consistent, or predictable basis.”
The temporary guidance for employers continues to include the following:
Employers that have gathering bans or restrictions due to COVID-19 are not required to perform an in-person review of the employee’s identity and employment authorization documents. Instead, employers may inspect the employee’s “Section 2” I-9 documents remotely, using “video link, fax or email, etc.” Employers must obtain, inspect and retain copies of the documents within 3 business days, and provide written documentation of their remote onboarding and remote work policy on the employee’s Form I-9. Once normal operations resume, employers must conduct an in-person verification of any documents presented by employees who were onboarded remotely, within 3 days of a return to the work location.
While DHS may be considering more permanent changes to remote document examination for I-9 eligibility verification, as of now, the above-described flexibility remains temporary. Therefore, 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.
If you have questions related to Form I-9 and related requirements, please contact your Mintz immigration attorney.