Extension for I-9 Compliance Flexibilities Announced

On January 27th, 2021, the Immigration and Customs Enforcement (ICE) announced an extension to a temporary policy regarding Form I-9 compliance. This announcement is in addition to similar extensions granted throughout 2020 regarding compliance with Form I-9 rules. Now, due to continued COVID-19 precautions, the Department of Homeland Security (DHS) will extend this policy until March 31st, 2021.

Background on Original Extension

Originally, on March 19th, 2020, due to COVID-19 precautions implemented by employers and employees, the DHS made an announcement. Beginning that date, the agency would exercise prosecutorial discretion to defer physical presence requirements associated with the Form I-9. In other words, when receiving and reviewing Form I-9 documents, the items would not need to be physically present. This temporary change in policy, however, only applies to employers and workplaces that are operating remotely. If there are employees physically present at a location, however, identity and employment eligibility verification extensions were not granted. Under the original extension requirements, employers in remote workplaces must inspect Form I-9, Section 2 documents remotely. They must also obtain, inspect, and retain document copies within three business days in order to complete Section 2. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field. This should occur once physical inspection takes place after normal operations resume. Additionally, once the documents have been physically inspected, the employer should note “documents physically examined” with the date of inspection. The employer should either add the comment to the Form I-9 Section 2 additional information field or to Section 3. These provisions were originally set to expire in May 2020 but, as mentioned earlier, are still in effect.

Employer Takeaways

Employers taking advantage of the remote option must provide written documentation of their onboarding and telework policy for each employee. This burden rests solely with the employers. Once normal operations resume, all employees on-boarded using remote verification, must report to their employer within three business days. Then, the in-person verification of identity and employment eligibility documentation for Form I-9 must occur. Once documents have been physically inspected, the employer should record “documents physically examined” with the date of inspection. In the same way that it has since March 2020, the DHS will continue to monitor the ongoing coronavirus pandemic. The agency will provide additional or updated guidance for employers, as needed. Accordingly, employers should monitor DHS and ICE websites for additional updates regarding the termination of any extension