ICE Further Extends Form I-9 Flexibility Policy

On March 19, 2020, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced a “flexibility policy” that allowed some employers to remotely inspect and retain copies of documents for the Form I-9 process on a temporary basis as a result of the COVID-19 pandemic. Employers who took advantage of the policy are required to create and maintain written documentation of their remote onboarding and telework policy for each employee. The policy has been extended multiple times, including an ICE announcement just before Memorial Day extending the policy to August 31, 2021. 

What does this mean? Employers with employees taking physical proximity precautions due to COVID-19 are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence until normal operations resume. At that time, all employees who were on-boarded using remote verification would be required to report to their employer within three business days for in-person verification of identity and employment eligibility documentation. The employer is then required to update any completed Form I-9 by adding “documents physically examined” with the date of in-person inspection in the Section 2 additional information field or next to Section 3 of the Form, as appropriate. In addition, if it is the same person who originally inspected the documents remotely, they should add their initials. If the physical inspection is done by a different person, that person should also write their title and full name.

“Normal operations” has never been defined; however, the agency has maintained from the beginning that the policy only applied to employers and workplaces that are operating remotely, implying that everyone was remote; and, if there are employees physically present at a work location, no exception was allowed for in-person verification. Additionally, the agency has consistently stated that, as employees return to the worksite, original documents should be reviewed and Form I-9s updated at that time, rather than waiting until the policy expired.

Effective April 1, 2021, and now including employees hired on or after June 1, 2021, employees who work exclusively in a remote setting due to COVID-19-related precautions are temporarily exempt from the physical inspection requirements of the Form I-9 until the employee begins non-remote employment on a regular, consistent, or predictable basis, or the flexibility policy is terminated, whichever is earlier.

If your company has begun to return employees regularly or consistently back to the office, even on a limited basis, HR should be working with them to complete the required in-person process within three days of their return, which could be difficult if a large number of people were hired in the last year. Our recommendation is that employers first determine which employees have returned to work in any capacity and coordinate an in-person meeting with each such employee to view their Form I-9 documentation. If nothing else, you will have given your HR department a head start if the policy is not extended beyond August 31, 2021.