The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have announced another extension to flexibility relating to in-person Form I-9 compliance. As we previously reported, ICE’s temporary policy allowing employers to inspect Form I-9 documents virtually was set to end on April 30, 2022. With the new extension, the policy will remain in effect until October 31, 2022.
As discussed in a previous post, the policy 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 covers all employers who hire employees on or after April 1, 2021 to exclusively work remotely due to the employer’s COVID-19 policy. In these cases, the in-person inspection requirement relating to Form I-9 identity and employment eligibility documentation applies only to employees who physically report to work at a company location on any “regular, consistent, or predictable basis.”
The temporary guidance relating to the policy provides 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.
The DHS recently published a request for information seeking comments from employers on their use of remote verification options, the kinds of technology used and any technical difficulties conducting I-9 inspections during the last 19 months of the COVID-19 pandemic. A proposed regulation is expected to be published in the summer of 2022 setting forth rules for permanent remote document inspection like those temporarily in place.
We will continue to monitor and report on further developments in this area. Should you have any questions, please contact ALG.
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