U.S. Immigration and Customs Enforcement Extends I-9 Compliance Flexibility

On August 18, the U.S. Immigration and Customs Enforcement (ICE) announced another extension to Form I-9 compliance flexibility granted in March as a result of COVID-19. This new period of flexibility extends to September 19.

As originally announced, 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.

As noted in the announcement, employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.