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October 2022 Form I-9 Updates

on Friday, 21 October 2022 in Labor & Employment Law Update: Sarah M. Huyck, Editor

As many have heard, the Department of Homeland Security (“DHS”) has been working on a new Form I-9 as well as considering allowing for remote viewing of acceptable documentation. Unfortunately, neither the new Form nor the new remote rules have been released and are not expected for some time. 

DHS announced this week that employers should continue using the Form I-9, Employment Eligibility Verification, after its expiration date of October 31, 2022 until further notice. DHS will publish a Federal Register notice to announce the new version of the Form I-9 once it becomes available. Frequently in the few past years, the new Form has not been ready for publication when the current Form expires; use of the current version until the new version is released is expected and will be noted in any audit. 

In addition, the U.S. Immigration and Customs Enforcement (“ICE”) announced this week an extension of the Form I-9 flexibilities first announced in March 2020 and updated in March 2021 until July 31, 2023. This extension, however, only applies to employees hired on or after April 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions. This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are in place for in-person verification of identity and employment eligibility documentation. If newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis. However, as employees return to the worksite, it is expected that original documents will be reviewed and each Form I-9 updated according to existing guidance.

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