UPDATED: I-9 Compliance Flexibility Extended Through May 31, 2021
The Department of Homeland Security (DHS) announced some temporary changes in Form I-9 compliance due to the COVID-19 outbreak. DHS will exercise discretion to defer the physical presence requirements for document review. Employers will not be required to review employee identity and employment authorization documents while the employee is present if the place of business is shutdown or working remotely, but they must inspect Section 2 documents remotely and obtain, inspect, and retain copies of the documents within three business days for purposes of completing Section 2.
The DHS notice also requires employers using these options to provide written documentation of remote onboarding and telework policies for each employee. Once normal operations resume, all employees using remote verification must bring their identity and employment eligibility documentation to their employer within three days.
After normal operations resume and once physical inspection takes place, the employers should enter “COVID-19” as the reason for the physical inspection delay in the Additional Information field. The employer should then add the statement “documents physically examined” with the date of the actual inspection on the Form I-9 in Section 2 or Section 3 as appropriate. The announcement stated that these provisions allowing for increased flexibility may be implemented for a period of 60 days from the date of the notice (March 20, 2020) or within three business days after the termination of the National Emergency, whichever comes first. It has since been extended through May 31, 2021.
Please note, this flexibility is only extended to employers and workplaces that are operating entirely remotely. The announcement states that if employees are still physically present at the work location, there are no exceptions to the in-person document verification requirements for the I-9. If new hires or existing employees are subject to COVID-19 quarantine restrictions or lockdown protocols, DHS will evaluate modifications to the process on a “case-by-case basis.”
An alternative option for I-9 compliance is for employers to designate an authorized representative to act on their behalf for Section 2 completion and signature of the I-9. The employer still holds the same responsibilities and liabilities for the authorized representative, including violations with the form or verification process.
DHS also noted that any employers who received Notice of Inspections (NOIs) in the month of March received a 60-day automatic extension from the effective date if they have not already responded. A second 30-day period was granted in June. Employers should monitor shifting conditions and look for additional updates from DHS regarding the extensions and other policy changes.
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