On October 11, 2022, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension through July 31, 2023 of Form I-9 remote verification flexibilities first announced in March 2020 and later updated in March 2021.
The March 2020-announcement, issued in response to COVID-19 public health guidance and precautions, enabled DHS to exercise prosecutorial discretion to defer physical presence requirements for the Form I-9, Employment Eligibility Verification under Section 274A of the Immigration and Nationality Act (INA). Under this exception, employers and workplaces operating remotely due to COVID-19 are not required to review an employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Form I-9 Section 2 documents remotely (e.g. video conference, fax, email, etc.) and obtain, inspect, and retain copies of the documents within three (3) business days of employment for purposes of completing Section 2. Once normal operations resume, employers are required to physically examine the documents of previously onboarded remote employees.
This exception never applied to employees physically present at an employer’s work location. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate in-person verification requirements on a case-by-case basis. Employers are required to enter “COVID-19” as the reason for the physical inspection delay in the Form I-9 Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add a “documents physically examined” notation with the date of inspection to the Form I-9 Section 2 Additional Information field, or to section 3 as appropriate.
The March 2021 update provided that as of April 1, 2021, the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis. If employees hired on or after April 1, 2021, work exclusively in a remote setting due to COVID-19-related precautions, they 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 Form I-9 flexibilities is terminated, whichever is earlier.
DHS has recognized that because of the COVID-19 pandemic, more employers have adopted permanent remote work arrangements. DHS is currently exploring alternative options that would include making permanent as of August 1, 2023 some of the current COVID-19-related flexibilities to examine employees’ identity and employment authorization documents. On August 18, 2022, DHS and ICE issued a Notice of Proposed Rulemaking that proposes alternative procedures for documents required by Form I-9. The proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternative options for document examination procedures for some employers. The proposed rule, still in draft mode and targeted for August 1, 2023-promulgation, would allow employers optional alternatives for examining the documentation presented by individuals seeking to establish identity and employment authorization for purposes of completing the Form I-9.