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Form I-9 Document Inspection Flexibility Due to COVID-19 Extended Again

On March 20, 2020, in response to the challenges faced by employers as a result of the coronavirus pandemic, the Department of Homeland Security (DHS) announced temporary flexibility in the requirements for completing Form I-9 while employers were operating remotely.

Employers whose workforce was operating remotely could inspect the Section 2 identity and employment eligibility documentation remotely — via video link, fax or email, within three business days of hire, and the employer was required to retain copies of these documents. This provision only applied to employers and workplaces that were operating remotely — no exceptions were made if employees were physically present at a work location.

DHS provided an update to its Form I-9 flexibilities guidance, on April 1, 2021, and once again has extended the remote inspection policy until October 31, 2022.

In the guidance that became effective April 1, 2021, DHS provided an update to its Form I-9 flexibilities guidance, stating that the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis. If employees were hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the physical inspection requirements associated with the 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.

It is unclear if DHS will extend the policy beyond October 31, 2022 date. If it is not extended then employers will be in a rush to conduct in-person document inspections. To prepare for the end of this flexibility policy employers should begin to prepare and maintain a list of employees who were hired and verified virtually since March 20, 2020. Include in this list the date when the employee will return to work on a regular, consistent, or predictable basis. Be sure that this verification occurs within three days after the employee returns to work.

Employers can continue to monitor the DHS and Immigration and Customs Enforcement (ICE) websites for additional updates by clicking here.

Contact PMP if you have any questions regarding this flexibility policy.


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