Form I-9 flexibilities first announced in March 2020 and updated in March 2021 will continue through July 31, 2023, according to the Department of Homeland Security. DHS made the announcement last week, citing continued safety precautions related to COVID-19 as the reason for extending the updated flexibilities.
In further response to COVID-19 and its effect on the workplace, DHS is also proposing a new rule to allow for alternative procedures for documents required by Form I–9. This proposed rule would enable the Secretary of Homeland Security to authorize alternative options for document examination procedures with respect to some or all employers. The proposals include required enrollment in E-Verify, mandatory document retention policies, a fraudulent document detection and/or antidiscrimination training requirement; among others.
During the initial COVID-19 public health response, DHS deferred the physical presence requirements of the Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA) for certain situations. Employers and workplaces operating remotely could take advantage of the Form I-9 flexibilities, but employees physically present in their workplaces could not. DHS also noted that they would evaluate Form I-9 completion practices affected by COVID-19 on a case-by-case basis.
In Spring 2021, DHS updated its Form I-9 flexibilities, and these updates will remain in effect through this extension:
Employers must inspect an employee’s Form I-9 identity and employment eligibility documentation in-person when the employee physically reports to work at a company location on any regular, consistent, or predictable basis.
Employees hired on or after April 1, 2021, who work exclusively in a remote setting due to COVID-19, are temporarily exempt from the physical inspection requirements until they undertake 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.
Employers may be unable to inspect and verify, in-person, the Form I-9 supporting documents of employees hired since March 20, 2020, in case-by-case situations (e.g., an employee no longer works for the employer). Employers may memorialize their reasons for this inability in a memorandum retained with each affected employee’s Form I-9, which will be evaluated in the event of a Form I-9 audit.
The Form I-9 flexibilities do not preclude employers from commencing, in 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.
Going forward DHS will continue to monitor the ongoing national emergency and provide updated guidance as needed. Employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.