U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibilities in rules related to Form I-9 compliance that was initially granted last year. Due to the continued precautions related to COVID-19, the Department of Homeland Security (DHS) will extend this policy until April 30, 2022.
This extension will continue to apply the guidance previously issued for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) 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.
The initial flexibility announcement issued on March 20, 2020, notes that DHS will evaluate certain COVID-19 related Form I-9 completion practices on a case-by-case basis as they relate to the physical inspection of Form I-9 documentation. Accordingly, as of April 1, 2021, the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis.
If employees hired on or after April 1, 2021 work exclusively in a remote setting due to COVID-19 related precautions, they are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the INA 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 timely inspect and verify, in-person, the Form I-9 supporting documents of employee(s) hired since March 20, 2020, as described above, in case-by-case situations (such as cases in which affected employees are no longer employed by the employer). In such cases, employers may memorialize the reason(s) for this inability in a memorandum retained with each affected employee’s Form I-9. Any such reason(s) will be evaluated, on a case-by-case basis, by DHS ICE in the event of a Form I-9 audit.
For more information, please see the March 2020 guidance.
VIRTUAL VERIFICATION BEST PRACTICES
- Employers with a remote workforce should consider a transition to the “Employee Designate” process, which encompasses the employee to identify a friend or family member to conduct the in-person verification on the employer’s behalf.
- Coordinate efforts to conduct the in-person document “touch and feel” inspection of previous I-9s completed using the Virtual Verification flexibility process.
Remote Hires = No Follow Up Requirements = I-9 Compliance Solved
Achieve Remote Compliance in one easy (in person) completion process with I-9 CONNECT
Eliminate the follow up requirements associated with the virtual “flexibility” option described above. I-9 CONNECT will help to ease one of the challenges you face during the onboarding of your remote hires, employment eligibility verification and compliance. With I-9 CONNECT, it’s easy to choose between utilizing an “Employee Designate” spouse, neighbor or friend, “Employer Designate” authorized company agent, or “Notary Designate” one of 14,000 notaries through our Notary Network Partner to complete Section 2 AND Section 3 reverifications.