UPDATE: On December 15, 2021, the Department of Homeland Security (DHS) has granted an additional extension of the I-9 remote document inspection flexibility policy until APRIL 30, 2022. This is a welcome relief for advocates who have been urging DHS to announce an extension at least two weeks before the current policy expires.
Previous post from December 14th prior to the above-mentioned extension:
The extension of Form I-9 remote document inspection flexibility is currently set to terminate on December 31, 2021. Are you prepared for the next steps? This article provides what you need to know about the flexibility and how you and your company can remain compliant into the next year.
What is I-9 Flexibility?
With the onset of COVID-19, on March 20, 2020, the Department of Homeland Security (“DHS”) began providing flexibility to the in-person verification of identity and employment eligibility documentation for Form I-9. This flexibility means that employers with employees taking physical proximity precautions due to COVID–19 may examine their employees’ identity and employment eligibility documents remotely (for example, over video link, fax, or email, etc.). This flexibility has been extended several times since its inception.
Before April 1, 2021, the remote I-9 inspection option was available only to employers and workplaces that were operating 100% remotely, with no employees physically present at the work location. On April 1, 2021, DHS announced more flexibility for employers. Under that announcement, employers may still use the remote I-9 inspection option for employees working remotely, even if other employees are working at the employer’s work location. Employees who provide documentation remotely are temporarily exempt from the physical inspection requirements associated with Form I-9 until they undertake non-remote employment on a regular, consistent, or predictable basis, or until the extension of the flexibilities related to such requirements is terminated, whichever is earlier.
What is the Current Status of the I-9 Flexibility Policy?
The extension of Form I-9 remote document inspection flexibility is currently set to terminate on December 31, 2021. It is not yet clear whether DHS will further extend the remote Form I-9 document inspection policy. Whenever the Form I-9 remote document inspection flexibility ends—whether that is on December 31, 2021, or at a later date if DHS extends the policy further—all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for the Form I-9. Employers who are currently transitioning employees back to the office are encouraged to take these in-person steps now to reduce the burden when the flexibility policy ends.
What Can Employers Do to Prepare for the Expiration of the Flexibility Policy?
At the present time, it is unclear if DHS will extend the policy or not. If it does not, then there will most certainly be a rush by employers to conduct in-person document inspection. If it is extended, employers may continue to take advantage of the flexibility policy. Employers should consider taking the following steps in anticipation of the expiration of the policy.
- Employers should prepare and maintain a list of all employees who were hired and verified virtually since March 20, 2020. The list should include dates for when employees will return to work on a regular, consistent, or predictable basis, as well as a deadline for in-person verification (three days after returning to work).
- Employers should consider designating a person or agent to conduct the in-person verifications. Those designated should devise a plan for when and how they will reach out to employees on the list.
- As employees return to the worksite, those designated to conduct in-person verifications should do so for each employee on the list.
- Employers should also consider having an agent conduct in-person verification of identity and employment authorization documents for employees while they are working remotely, instead of waiting for the policy to expire.
What Happens Next?
It’s possible that DHS may make the flexibility policy a permanent one. DHS recently announced that it is currently exploring alternative options to physical Form I-9 document examination that offer an equivalent or higher level of security for identity and employment eligibility verification purposes. DHS is seeking comments from members of the public for suggested methods employers may use to conduct remote document examinations related to the Form I–9 as well as information and improvements to these DHS policies and processes. Comments from the public are due on or before December 27, 2021. The public may submit comments, identified by docket number USCIS–2021–0022, through the Federal Rulemaking Portal.
Employers are required to check the DHS and Immigration and Customs Enforcement (ICE) websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.
The Corporate Immigration Team of Nilan Johnson Lewis continues to monitor the progress of the I-9 flexibility policy. Employers are encouraged to contact our team with any questions they may have.