On Dec. 15, 2021, U.S. Immigration and Customs Enforcement (ICE) extended the flexibility previously afforded to the Form I-9 compliance rules regarding physical document inspection through April 30, 2022. ICE has announced that this flexibility will apply to employees hired on or after April 1, 2021, who work exclusively in a remote setting due to the ongoing COVID-19 pandemic and related precautions.
The Form I-9, Employment Eligibility Verification, is used to verify the identity and employment authorization of all newly hired employees in the United States, and to reverify the continued employment authorization of certain existing employees. Generally, the law requires that, at the time of completion of Section 2 or 3 of the Form I-9, employers must review original documents demonstrating an employee’s employment eligibility in the physical presence of that employee. However, flexibility for this rule was offered to employers when remote operations became necessary due to COVID-19. The Department of Homeland Security (DHS) initially issued guidance relaxing the Form I-9 requirements in March 2020, allowing employees to review identity and work authorization documents for newly hired employees remotely, due to COVID-19-related office closures.
In April 2021, DHS announced that employers were able to continue to forego physical inspection of documents for employees hired on or after April 1, 2021, until they have returned to office operations on a regular, consistent, and predictable basis or until DHS has eliminated this flexibility, whichever is earlier. As of the effective date of return to in-office operations on a regular, consistent, and predictable basis, or as of the discontinuation of this flexibility, employers must resume physical inspection of all Form I-9 acceptable documents; and they must also complete physical inspection of those documents initially completed remotely within three (3) business days.
Those employers continuing regular remote operations are instructed to notate remotely completed Forms I-9 in the “Additional Information” field in Section 2 of the form, and then ensure that physical inspection occurs upon resumption of in-office operations. Employers may wish to stay in regular contact with their immigration counsel for updates on Form I-9 compliance-related requirements and flexibilities.