DHS Extends Form I-9 Flexibility for Remote Employees to August 31, 2021

Gibney Anthony & Flaherty, LLP

The U.S. Department of Homeland Security (DHS) has extended a policy providing employers with flexibility in meeting certain Form I-9 Employment Verification requirements.  The policy, initially implemented in March 2020, relaxes the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person” during the pandemic. The guidance, which was set to expire May 31, 2021, has now  been extended to August 31, 2021.

Who does the Policy Affect?

Form I-9 in-person inspection rules were relaxed for any U.S. employer who converted to a total remote working schedule for all employees due to COVID-19. The policy states that “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 Form I-9.“ However, according to the policy, DHS will consider exceptions if newly-hired employees are subject to COVID-19 quarantine or lockdown protocols.

The current extension includes guidance for employees hired on or after June 1, 2021 working exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.

How Should Qualifying Employers Proceed?

Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.

Qualifying employers who use this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy. DHS reminds employers that, as a general matter for remote workers (even before the pandemic), a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person with three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.

Looking Ahead

Employers should anticipate that DHS will terminate the  flexibility to verify Form I-9 documents virtually  as pandemic restrictions are lifted.  Because employers who have availed themselves of the relaxed rules will have only three (3) business days to physically examine documents when normal operations resume,  employers may wish to designate agents to physically inspect documents now for those hired and verified remotely since March 2020.  Keep in mind, though, as noted above, that employers are liable for any violations or errors made by the designated authorized representative during the verification process.

Gibney is closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available.

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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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