Does a four-month extension of the Form I-9 verification flexibilities signal major change is on the horizon at DHS-ICE?

McAfee & Taft

McAfee & Taft

As the pandemic continues to loom, employers continue to grapple with the balance between safeguarding its workforce and complying with the Form I-9 in-person physical inspection requirements. Since March 20, 2020, the U.S. Department of Homeland Security and U.S. Immigration and Customs Enforcement (DHS-ICE) has issued varying guidance on how and when an employer may satisfy the in-person inspection requirements during the ongoing, yet pervasive, pandemic.

Since April 1, 2021, DHS-ICE has permitted employers, taking COVID-19 related precautions, to delay inspecting its remote employees’ identity and employment eligibility documents in the employees’ physical presence. For those employees, an employer may opt to verify the employee’s identity and work authorization remotely, via video link, fax, email, etc. See here. The employer must complete the in-person inspection requirements within three business days from when the remote employee reports to its company location on a regular, consistent, or predictable basis or when DHS-ICE terminates its guidance, whichever occurs first. For well over a year and a half, DHS-ICE extended its verification flexibilities to employers in only two-month increments. But in August, and again last Thursday, DHS-ICE granted employers a four-month extension this time setting its guidance to expire on April 30, 2022.

Is there a change on the horizon?

For over three decades, federal law has required every employer to attest on the Form I-9 that its employees are authorized to work in the United States. A critical component to satisfying those requirements is the employer’s duty to inspect the unexpired original documents in the employee’s actual physical presence or risk hefty fines for its noncompliance. But is there a major change on the horizon? Could these verification flexibilities be made permanent given the changing composition of the workforce? Maybe.

DHS-ICE is actively reviewing the in-person inspection requirements. Employers are invited to submit written comments on or before December 27, 2021, regarding their experiences in satisfying the inspection requirements, their examination practices, and the impacts of remote document examination conducted during the COVID-19 pandemic.

Potential employer liability when a remotely inspected employee moves on

With the uncertainty of today’s job market, one thing remains crystal clear: employees are leaving their employers in search of more flexible and remote work environments. That sudden departure may render an employer’s Form I-9 in-person inspection requirements an impossibility and possibly expose the employer to liability.

DHS-ICE announced it would continue to exercise prosecutorial discretion on a case-by-case basis when reviewing an employer’s Form I-9s for noncompliance. Employers are advised to attach a written explanation of the employer’s inability to timely or otherwise complete the inspection requirements to each of the affected Form I-9s. For existing employees, the employer or its authorized agents are encouraged to alleviate the backlog by completing the in-person physical inspection requirements.

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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