Form I-9 Compliance Flexibility Extended

On May 14, the U.S. Immigration and Customs Enforcement (ICE) announced the extension of rule flexibility granted for Form I-9 compliance for an additional thirty (30) days. The prior guidance was set to expire on May 19.

As originally announced on March 20, the Department of Homeland Security (DHS) noted it will “exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA).”

Specifically, employers were not required to view any identity and employment authorization documents in-person. Rather, employers could view the documentation remotely, entering “COVID-19” into the Section 2 Additional Information field once a physical review of documentation could take place after normal operations resume. In order to take advantage of this rule flexibility, employers must provide written documentation of the teleworking policy and remote onboarding for each employee. Employees onboarded with a virtual inspection process must report to their employer within three (3) business days once normal operations resume for the in-person verification of documentation.

Importantly, the rule flexibility only applies to employers with remote working staff. If employees are physically reporting to the work location, employers must comply with Form I-9 requirements per normal. The only exception would be employees subject to quarantine or lockdown protocols which the DHS will review on a case-by-case basis.