Once again, at the last moment, ICE has extended “flexibility” for I-9 employment verification. This time, for four more months, until the end of the year, December 31, 2021, due to continuing COVID-19 precautions.
Employees hired on or after April 1, 2021, who work exclusively in a remote setting are temporarily exempt from the physical inspection requirements associated with Form I-9 Employment Eligibility Verification. This flexibility allows employers to continue to inspect I-9 documents virtually, over video link, or by fax or email. Flexibility will continue until an employee undertakes non-remote employment on a regular, consistent, or predictable basis, or until the policy is terminated. ICE reiterated that flexibility applies only to employers and workplaces that are operating remotely. If employees are physically present at a work location, flexibility does not apply.
This four-month extension is helpful because many companies have not been able to return to in-office employment on a consistent basis. Nevertheless, it is important to be prepared for the end of the flexibility program by:
- Keeping track of employees who have been verified virtually, when they will be returning to work, and the deadline for in-person verification; and
- Identifying and training staff to conduct the necessary in-person reviews.
Flexibility has been in effect since March 2020. Perhaps ICE will decide to adopt flexibility permanently. But, if not, hopefully DHS and ICE will provide sufficient notice of the end of the policy.
