The Department of Homeland Security (“DHS”) and the U.S. Immigration Customs and Enforcement (“ICE”) have announced the extension of Form I-9 employment eligibility verification policy due to the ongoing COVID-19 crisis. As a precautionary measure, the temporary flexibility guidance set to expire on August 31 is extended effective September 1, 2021.
ICE first issued this flexibility in March 2020, and it has been extended multiple times since then.
I-9 Remote Operations Flexibility
The requirement that employers must inspect employees’ I-9 identity and employment eligibility documents in person applied only to those employees who physically report to the work location on a consistent, regular, or predictable basis.
Employees hired after April 1, 2021, and who work remotely due to COVID-19 were temporarily exempt from physical inspection of the identity and employment eligibility documents. The exemption is valid only until the employee resumes in-person work at the work location.
These flexibilities in no way preclude employers from conducting an in-person verification of identity documents for those who were hired after March 20, 2020, and those who have presented their documents for remote inspection according to the flexibilities announced by DHS in March 2020.
Form I-9 and Policy Compliance
Employers must complete a mandatory form and maintain records, confirming the employment authorization of individuals hired. Additionally, employers are required to verify the documents of new employees within three days of hire. DHS inspects employers randomly or based on tips or complaints. DHS has the authority to inspect records that employers maintain.
Employers are encouraged to watch for announcements from the DHS and ICE for more updates on the I-9 requirement flexibility. Norris McLaughlin will continue to monitor this story and provide updates if there are further developments.