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I-9 Compliance in the time of COVID: DHS Announces Flexibility Extension

The Department of Homeland Security (DHS) announced it has extended its COVID policy of deferring the physical presence requirements associated with Form I-9, Employment Eligibility Verification. The policy, instituted at the beginning of the pandemic, was set to expire on January 31, 2021, but has been extended to March 31st of this year (see the news release here).

This means that employers with employees taking proximity precautions are not required to review an employee’s identity and employment authorization in the employee’s physical presence.  Employers MUST, however, inspect Section 2 documents remotely (video, fax, email, etc.) within three business days of hire. Employers who choose this option must provide written documentation of their remote onboarding and telework policy for each employee.

It is important to note that DHS’ flexibility only extends to employers still working remotely. If there are any employees present at a work location, no exceptions are being implemented for in-person verification. However, if newly hired employees (or existing employees) are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.

Once the flexibility policy expires and normal operations resume, employees who were onboarded using remote verification must report to the employer within three business days for in-person verification of identity and employment eligibility. At that time employers should take these steps when completing the I-9:

  • Write “COVID-19” as the reason for the physical inspection delay in Section 2 “Additional Information.”
  • Add “Documents physically examined” with the date of inspection in Section 2 “Additional Information,” along with the date of inspection.

Nilan Johnson Lewis is here to help employers navigate the complexities of U.S. immigration law, including the I-9 process. Please feel free to contact us if you need additional information.

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