DHS Extends Form I-9 Compliance Flexibility Rule for an Additional 60 Days

Ballard Spahr LLP

Ballard Spahr LLP

On Monday, September 14, 2020, the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE) announced another extension of the flexibility rule issued earlier this year relating to the completion of the Employment Eligibility Verification (Form I-9). Due to physical proximity precautions implemented by employers in response to the COVID-19 pandemic, in March DHS announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the completion of the Form I-9 for 30 days and has continuously granted additional 30-day extensions. The current extension expires on September 19, 2020.

The latest DHS announcement extends the policy for an additional 60 days until November 19, 2020. The policy allows employers to inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and requires employers to obtain and retain copies of the documents within three business days of hire. Employers are required to examine physically the employee documents and complete Section 2 of the Form I-9 once normal operations resume. This policy only applies to employers and workplaces operating remotely.

Employers with employees that are physically present at a work location must continue to provide in-person verification of identity and employment eligibility. Those employers are required to examine physically the identification documents of each employee when completing Section 2 of the Form I-9.

For those employees with businesses that are not completely operating remotely, the I-9 regulations allow employers to designate an authorized representative to act on their behalf to complete Section 2 remotely. An authorized representative can be any person the employer designates to complete and sign Section 2 of the Form I-9 on the employer’s behalf. The employer retains liability for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.

Employers transitioning back from remote work are required to physically examine the Form I-9 document and complete Section 2 appropriately. DHS directs employers to notate “documents physically examined” in the Additional Information field in Section 2 of the form and enter the date of inspection and “COVID-19” as the reason for the physical inspection delay.

Employers must ensure that human resource personnel are trained in Form I-9 compliance and continue to monitor additional Form I-9 guidance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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