ICE Extends I-9 Compliance Flexibility

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Those responsible for employee onboarding can breathe a sigh of relief after U.S. Immigration and Customs Enforcement last week announced that they would extend flexibilities that were instituted last year as a result of COVID-19. Specifically, the announcement extends the agency’s previous rules until August 31, 2021.

The rule applies to employees if they 1) are hired on or after June 1, 2021 (but the previous rules have been in effect since March 2020); and 2) work exclusively in a remote setting due to COVID-19. Specifically, employees hired who meet the above two pre-requisites are temporarily exempt from the physical inspection requirements set forth in Section 2 of the Form I-9 Employment Eligibility Verification process. This exemption applies until the employee is non-remote or August 31, 2021, whichever is earlier.

What do you need to know about this exemption:

  1. If your organization has in-person operations and remote operations, this flexibility only applies to individuals who are working remotely. If an individual physically reports a work at a company location on any regular, consistent, or predictable basis, the in-person physical inspection requirements remain in effect.
  2. If the employee has been hired for a remote position that is not COVID-19 related, and the position will continue in a remote capacity, even after COVID-19 precautions are lifted, your organization cannot take advantage of this exemption. In these situations, you will have to have a company representative meet the employee in person to review the documentation within three days of the start of employment.
  3. There still needs to be a review of Section 2 documents remotely. Accordingly, the employee will need to share the document by video link, email, fax or send a photocopy to the office so that the company can inspect the documentation remotely. When filling out Section 2, the employer should enter “COVID-19 Delay in Physical Review” in the box marked “Additional Information.” Employers must provide the employee with written documentation of their remote onboarding and telework policy, including that the employee will be required to provide documentation evidencing their ability to legally work in the United States upon returning to the company’s physical office.
  4. Once the employee returns to work in a non-COVID-19 remote format, or on August 31, 2021 (whichever is sooner), employers will need to meet with the employee within three days of their return to work and physically inspect the documents and amend the I-9 form. Recall that the I-9 form cannot have information erased and white out cannot be used. In the space marked “Additional Information,” employers should write “Documents Physically Examined [date],” including the date in which the physical inspection occurred.

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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