On December 15th, 2021, U.S. Immigration and Customs Enforcement (ICE) extended its Form I-9 compliance flexibility first granted last year. The announcement follows the Department of Homeland Security’s (DHS) continued precautions related to COVID-19. Specifically, this flexibility affects rules requiring physical document inspections. Namely, it relates to workers hired on or after April 1st, 2021, who work remotely because of the pandemic. Effectively, the extension will apply through April 30th, 2022. ICE had previously extended the physical inspections exemption in September 2021.

Background on Form I-9 Compliance Flexibility

In light of COVID-19 precautions implemented by employers and employees, the DHS introduced Form I-9 compliance flexibility on March 20th, 2020. In brief, the agency exercised discretion to defer physical presence requirements associated with any Form I-9 inspections after that date. Therefore, when employers receive and review Form I-9 documents, the items would not need to be physically present. Specifically, this temporary policy change only applies to employers and workplaces operating remotely. In contrast, employees who are physically available are not eligible under the extension.

Current Extension of Form I-9 Compliance Flexibility

Similar to the original extension, the DHS will evaluate certain COVID-19-related Form I-9 inspection flexibility on a case-by-case basis. Accordingly, employees working remotely because of COVID-19 are temporarily exempt from physical inspection requirements. In contrast, employees who report in-person to work on a consistent basis are still subject to physical Form I-9 inspections. Occasionally, employers cannot verify in-person Form I-9 documents of employees hired after March 20th, 2020. For this reason:

  • Such employers may memorialize the reason(s) for this inability in a memorandum retained with each affected employee’s related documents; and
  • ICE will evaluate such reason(s) on a case-by-case basis in the event of a Form I-9 audit.

Presently, the current extension to the Form I-9 compliance flexibility is effective through April 30th, 2022. In particular, the guidance applies to covered workers hired on or after April 1st, 2021. According to ICE, the extension applies to these covered workers only until they undertake “non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.”

Employer Takeaways

The ongoing COVID-19 pandemic continually changes the workplace environment and related hiring and onboarding practices. Subsequently, certain government-mandated procedures that involve an inherent risk of contracting the coronavirus may receive further suspensions as the pandemic progresses. Accordingly, the DHS regularly provides updated guidance that affects related legal requirements. However, employers still need to maintain legal compliance with employee recordkeeping laws, such as Form I-9 compliance. Therefore, employers should continue to monitor the DHS and ICE websites to avoid potential penalties and fines.