The Biden administration has allowed in-person physical inspection requirements related to the Form I-9 Employment Eligibility Verification process to be postponed during the Covid-19 pandemic. This has been a great convenience for employers in the short term but could pose logistical problems down the line as more and more people may need to be reverified in person if and when they return to their worksites.
U.S. Immigration and Customs Enforcement (ICE) has extended flexibilities several times that were initially summarized in a March 2020 news release. Most recently, the flexibilities, including a deferral of the physical presence requirements associated with the I-9 process for employers whose employees are working remotely due to the pandemic, were extended until December 31, 2021. ICE explained that the policy only applies to employers and workplaces operating remotely: “If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation” for I-9 purposes.
The kicker too is that once normal operations resume, 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. Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with employers, ICE noted.
According to reports from the field, ICE agents are looking at every situation on a case-by-case basis and trying to be as flexible as possible, although they remain alert to potential fraud and do not anticipate future changes to the in-person inspection requirement. ICE noted that employers “are required to monitor the [Department of Homeland Security] and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.”
ICE noted that these flexibilities don’t prevent employers from “commencing, in their discretion, the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.”
Contact your WR attorney for advice and help in specific situations.
More info:
- “DHS Extends Form I-9 Requirement Flexibility,” https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/dhs-extends-form-i-9-requirement-flexibility-effective-september-1-2021
- ICE March 2021 news release, https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility
- ICE March 2020 news release, https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance
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