DHS Extends Form I-9 Flexibility

On November 18^th, 2020, Immigration and Customs Enforcement (ICE) announced an extension of rule flexibilities related to Form I-9 compliance. The initial rule update, announced earlier this year, was set to expire on November 19th, 2020. Due to the continued COVID-19 pandemic, the Department of Homeland Security (DHS) will extend this policy until December 31^st, 2020.

Background of Original Order

In March 2020, due to workplace COVID-19 precautions, the DHS announced that it would exercise discretion when enforcing employment verification. Specifically, the department would defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9). This policy only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, in-person verification of identity must still occur.

Document Inspections

Even though employers do not need to verify identity and employment documents physically, they still need to inspect documents remotely. This inspection can occur over video link, fax, email, etc. Retention and physical inspection of documentation, however, has not changed, even during the pandemic. For example, when employees are in the workplace, employers must collect Section 2 documents within three days of its completion. In a remote working situation, employers also should enter “COVID-19” as the reason for the physical inspection delay. Employers should enter this information in the Section 2 Additional Information field once physical inspections take place after operations resume. In the same section, or in Section 3, as applicable, the employer should add “documents physically examined” with the date.

Employer Takeaways

If employers have already been following the original March 2020 order, there is nothing more that they need to do. They just need to continue staying in compliance with that updated policy until December 31^st, 2020. Going forward the DHS will continue to monitor the ongoing national emergency and provide updated guidance as needed. Employers should monitor the DHS and ICE websites for additional updates and when normal DHS and ICE operations will resume. 2020 has been a busy year for the DHS and the Form I-9. Since May 1^st, employers should be using the updated version of the form (version 10/21/2019) for verification purposes. Any employers not using the latest version are not in full compliance with I-9 documentation requirements.