ICE announced that I-9 flexibility will be extended again – this time through the whole summer until August 31, 2021.
Since March 2020, companies that have been operating remotely have been able to inspect Section 2 Form I-9 documents virtually, over video link, by fax or via email. In April 2021, the Department of Homeland Security (DHS) clarified that in-person inspection applied only to employees who report to work at a company location on a “regular, consistent or predictable basis.” Employees who work exclusively in a remote setting due to COVID-19 precautions are temporarily exempt from in-person inspection until they undertake non-remote employment on a “regular, consistent or predictable basis.”
While it is good to have this additional three-month break, we still do not know when DHS will terminate this flexibility. Once it happens, there will likely be a “rush” to conduct in-person verification and reverification within three business days, particularly for foreign nationals. Accordingly, companies should consider starting to conduct in-person verifications and reverifications for those hired or reverified on or after March 20, 2020 (when the flexibility started) who were verified remotely. This can be done as employees return to the worksite (whether on a regular basis or not) or it can be conducted by agents selected by the employer. An employer may select any individual as an agent for verification purposes, but the employer will remain responsible for any errors in that process.
To prepare for the end of the flexibility program, employers should:
- Maintain a list of all employees who were verified virtually, when they will be returning to work, and the deadline for their in-person verification.
- Determine who will be conducting the in-person verifications and how and when they will be reaching out to the affected employees.
- Train staff on how to update I-9 forms after the in-person review. After the physical inspection, the employer or authorized representative should note “COVID-19” as the reason for the delayed in-person inspection and “documents physically examined” with the accurate date and the name of the person who conducted the review in the “Additional Information” field in Section 2 of the I-9 or in Section 3 (for reverification), as appropriate.
- Be on the lookout for special rules regarding I-9s for individuals who are beneficiaries of TPS (Temporary Protected Status) or DED (Deferred Enforced Deportation). These are forms of humanitarian protection for certain immigrants and the government often provides automatic extensions of their employment authorization.
DHS has been asked to provide sufficient notice as to when flexibility will be discontinued, but such notice is not guaranteed.
Jackson Lewis attorneys are available to assist you in preparing for the end of flexibility.