Fox Rothschild LLP

Today, Wednesday May 19, 2021, Department of Homeland Security’s U.S. Immigration and Citizenship Service announce clarification on its previous notice of March 31, 2021 providing another 60-day extension for remote Form I-9 inspection. The latest announcement includes clarification in three main areas:

 1.  An employer’s entire staff is no longer required to work virtually for the employer to use temporary flexibilities.

  • Before April 1, 2021, if there were employees physically present at a worksite location, DHS did not permit policy exceptions of the in-person Form I-9 document examination requirements.
  • DHS has clarified that employers do not need to have 100% percent of their staff working remotely to use the temporary flexibilities permitting remote inspection.

2.  Provides greater flexibility for employers.

  • Employees who were hired as of April 1, 2021 and working remotely are exempt from the in-person examination of their Form I-9 identity and employment eligibility documentation, even if some employees are working in-person at the employer’s worksite.
  • This flexibility ends once the employee undertakes non-remote employment on a regular, consistent, or predictable basis, or the extension of the remote inspection flexibilities related to such requirements is terminated, whichever is earlier

3. Encourages employers to begin to address any physical inspection backlog.

  • Some employers who used remote inspection for employees hired on or after March 20, 2020, have accumulated a backlog of Forms I-9 that require the physical inspection of identity and employment authorization documentation upon the affected employees’ return to in-person employment.
  • DHS’s March 31, 2021, guidance indicates that employers may in their discretion, begin the in-person examination of affected employees’ Form I-9 identity and employment eligibility documentation before such employees return to in-person employment.

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