The Immigration and Customs Enforcement (ICE) recently announced an additional extension to the Form I-9 physical inspections exemption for businesses hiring remote workers. The August 31 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 December 31st, 2021.
Background on Original Form I-9 Physical Inspections Extension
On March 19th, 2020, the DHS announced the original extension due to COVID-19 precautions implemented by employers and employees. Subsequently, the agency exercised discretion to defer physical presence requirements associated with any Form I-9 inspections after that date. 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 available, identity and employment eligibility verification extensions are not granted.
Specifically, under the original Form I-9 physical inspections extension, remote workplace employers 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.
Employer Takeaways
In conclusion, employers providing remote work must provide written documentation of each employee’s onboarding and telework policy. 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 for other ICE or DHS updates regarding the termination of any Form I-9 physical inspections extensions.