The Department of Homeland Security (“DHS”) and U.S. Immigration and Customs Enforcement (“ICE”) has announced another extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification. 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 we previously reported, the policy allows employers with a remote workforce 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 remains in effect and 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.
DHS is considering setting forth rules for permanent remote document inspection but for now, the policy remains temporary. We will continue to monitor and report on further developments in this area. Should you have any questions, please contact Ali Law Group.