DHS Extends Flexibility of Form I-9 Requirements for Remote Workers

On August 31, the Department of Homeland Security (DHS) announced an extension of its policies for certain I-9 requirements due to the COVID-19 pandemic. Specifically, DHS temporarily deferred the physical presence requirement of employers inspecting a remote employee’s eligibility verification form (I-9) and corresponding documentation (passport, birth certificate, etc.).

The new extension will last until December 31, 2021. Continue reading for additional information about the application of the extended DHS policy for verifying remote workers along with key reminders for employers moving forward.

 

The Current Status of Form I-9 Requirements for Physical Presence

Section 274A of the Immigration and Nationality Act (INA) requires employers to certify their verification of an employee’s documents that authorize them to legally work in the U.S. The employer must make this certification by reviewing the I-9 Form and accompanying documents in the presence of the employee. During the beginning of the pandemic, DHS stated it would evaluate those practices for completing I-9 Forms on a case-by-case basis because of the health and safety risks of COVID-19 from physical contact.

The DHS updated that guidance from March 20, 2020 by announcing that, effective April 1, 2021, it would limit the physical presence requirement for employment verification of employees to those who physically report to work. The latest announcement from the U.S. Immigration and Customs Enforcement (ICE) extended this rule to December 31, 2021.

The flexibility with completing the I-9 Form only applies to employees who are exclusively remote. If the employee ever physically reports to work, the employer should complete the I-9 requirements. Assuming workers are exclusively remote, the employer should still review and retain copies of the Section 2 documents remotely within 3 business days.

 

Important Reminders for Employers Navigating I-9 Flexibility

Employers should be mindful of additional steps for complying with the flexible certification of I-9 Forms and Section 2 documents of remote workers. The ICE website further explains that employers should do the following:

• • Enter “COVID-19” as the reason for the delay in physical inspection in the Section 2 field for “Additional Information.”
  • Input “documents physically examined” along with the date of inspection in the same box for additional information in Section 2.
  • Employers who defer the physical presence requirement must provide written documentation of their remote onboarding and telework policy for each employee.
  • After termination of the national emergency or expiration of the deferment period, employers must have employees report within three days to physically verify identity and work authorization documents.
  • Once physically examined, employers will supplement the additional information field in Section 2 with the date of physical examination.

 

Be Aware of Future Developments for I-9 Completion

Nothing in the guidance from DHS and ICE prohibits an employer from having an employee report in person to fulfill the original requirements under Section 2 of the I-9 Form. Rather, the leniency from DHS and ICE is meant to balance the interests of employers who hire remote workers during the pandemic and the need for compliance with INA. Employers should continue to monitor updates from DHS and ICE for new information about when the I-9 flexibilities will end and regular operations of the agencies will resume.

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