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DHS Extends Flexibility in Completing Forms I-9 Due to the Pandemic through December 31, 2021

2 Sep

Foster first reported in March of 2020 that the Department of Homeland Security (DHS) was providing flexibility to employers in completing the Employment Eligibility Verification Form I-9 by allowing documents presented by employees in connection with the Form I-9 process to be examined remotely (e.g., via video link, fax, e-mail, etc.), rather than in the employee’s physical presence. This flexibility was permitted under certain circumstances for employers taking physical proximity precautions due to COVID-19.  This policy has been extended several times. 

DHS provided additional guidance in March 2021 related to employees hired on or after April 1, 2021. Physical inspection of the Form I-9 documents is required for employees hired on or after April 1, 2021 who physically report to work at an employer’s location on any regular, consistent, or predictable basis. Employees hired on or after April 1, 2021 who work exclusively in a remote setting due to COVID-19-related precautions are temporarily exempt from the in-person physical inspection requirements until they begin working in-person on a regular, consistent, or predictable basis. U.S. Immigration and Customs Enforcement (ICE) announced on August 31, 2021 that it extended this DHS temporary policy through December 31, 2021 due to the ongoing national emergency related to COVID-19.  

Employers wanting to use this temporary option for such employees working remotely should follow the steps below: 

  1. Newly hired employee completes Section 1 on or before the first date of employment for pay;  
  1. Employer inspects documents presented by the employee remotely (e.g., over video link, fax, e-mail, etc.) and completes Section 2 within three business days of the employee beginning work; 
  1. Employer obtains and retains a copy of the documents presented by the employee for Section 2 with the Form I-9;  
  1. Once physical inspection can take place, the employer enters “COVID-19” in the Additional Information field in Section 2 as the reason for the delay in physically inspecting the documents; and 
  1. Once the documents have been physically inspected, the employer adds, “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3 as appropriate.  

Employers wishing to use this special procedure must carefully document their remote onboarding and telework policy and keep it with the employee’s Form I-9.  If newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate these circumstances on a case-by-case basis.      
 

Employers who use this special procedure must still perform an in-person inspection of the Section 2 original documentation within three business days after the employee undertakes non-remote employment on a regular, consistent, or predictable basis, or the extension of the Form I-9 compliance flexibility ends, whichever is earlier. Any audit of subsequent Forms I-9 would use the date the documents were physically examined as a starting point for these employees whose documents were inspected remotely.  

    
Additionally, as before the pandemic, the employer may continue to designate an authorized person to complete and sign the Form I-9 on the employer’s behalf. This would involve:  

  1. The employee properly completes Section 1 on or before the first day of work for pay;  
  1. In coordination with Human Resources, the employee identifies a colleague, friend, neighbor, relative, or other person designated by Human Resources to serve as a verifier in Section 2;  
  1. The employee brings his or her documents to the designated verifier; and 
  1. In coordination/communication with Human Resources, the designated verifier reviews the original documents with the employee and properly completes Section 2 of the Form I-9 within three business days of the date the employee begins work for pay.  

The employer remains liable for any violations made with the Form I-9 process. 

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their newly hired employees within three business days from the date of hire.  

Foster will continue to monitor government procedural changes and other actions related to COVID-19 and will provide additional updates on the immigration-related impacts of COVID-19 via our firm’s website at www.fosterglobal.com.