Recently, the Immigration and Customs Enforcement (ICE) announced an additional extension to Form I-9 compliance. The May 27 announcement is similar to extensions granted throughout 2020 involving Form I-9 compliance flexibilities during the pandemic. However, due to continued COVID-19 precautions, the Department of Homeland Security (DHS) will extend this policy until August 31st, 2021.
Background on Original Extension
On March 19th, 2020, due to COVID-19 precautions implemented by employers and employees, the DHS announced the original extension. Subsequently, after that date, the agency would exercise prosecutorial discretion to defer physical presence requirements associated with Form I-9 compliance. In other words, when employers receive and review Form I-9 documents, the items would not need to be physically present. However, this temporary policy change only applies to employers and workplaces operating remotely. On the other hand, if employees are physically present, identity and employment eligibility verification extensions were not granted.
Specifically, under the original extension requirements, employers in remote workplaces must inspect Form I-9, Section 2 documents remotely. Most importantly, they must obtain, review, and retain document copies within three business days to complete Section 2. Markedly, employers should enter “COVID-19” as the reason for the physical inspection delay in Section 2 Additional Information. However, the notation should happen once a physical inspection occurs after normal operations resume.
Once the employer physically inspects the documents, they should note “documents physically examined” with the corresponding date. The employer should add the comment to the Form I-9 Section 2 additional information field or Section 3.
In conclusion, employers providing remote work 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 onboarded using remote verification must report to their employer within three business days. Then, the in-person validation of identity and employment eligibility documentation for Form I-9 must occur.
In the meantime, as 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, regarding I-9 compliance. Accordingly, employers should watch DHS and ICE websites for other updates regarding the termination of any extensions.