The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced they would again extend flexibility relating to in-person Form I-9 compliance. As discussed in a previous post, on March 19, 2020, DHS and ICE announced they would allow employers whose workforce was 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, which was set to expire May 31, 2021, has been extended through August 31, 2021. The policy applies only to employers and workplaces that are working entirely remotely. If there are employees physically present at the work location, no exceptions are being implemented for the in-person verification process.
The I-9 compliance update includes 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 so long as they provide written documentation of their remote onboarding and remote work policy on the employee’s Form I-9. Once normal worksite operations resume, employers are required to review the employee’s documents in person within 3 days of a return to the work location for all employees who were onboarded using remote verification.
In addition, on March 31, 2021, ICE updated its I-9 flexibility guidance to add an additional provision that applies to all employers. For any employees hired on or after April 1, 2021, and who will exclusively work remotely due to the employer’s COVID-19 policy, the physical I-9 inspection exception described above applies to these hires. The employer must perform an in-person review of the employee’s documents when the employee begins reporting to an office on a, “regular, consistent, or predictable basis.”
If you have a specific Form I-9 question, please contact your Mintz immigration attorney.