I-9 Flexibility Rules Extended… Again

HR Compliance Alert - April 25, 2022

Earlier today, the DHS (Department of Homeland Security) once again published an extension in the flexibilities provided and announced in March of 2020 at the beginning of the pandemic. The previous postponement allowed flexibility through the end of April 2022.

Today’s announcement cited “continued safety precautions related to COVID-19″. This communication published by the federal government, DHS and ICE (Immigration and Customs Enforcement) extends the previous flexibilities through October 31, 2022.

The Immigration Reform and Control Act (1986) requires employers to verify the identity and employment eligibility of employees by inspecting physical versions of certain official documentation and completing the I-9 Form for each individual.  Failure to follow these rules exposes an employer to possible criminal and civil sanctions.

For current employees, employers must maintain original Form(s) I-9 on paper (or certain electronic versions).

For former employees, employers must retain copies:

  • For at least three years from the first day of employment OR
  • For one year from the date employment ends, whichever is longer.

At the beginning of the COVID pandemic in March 2020, the U.S. Immigration and Customs Enforcement (ICE) implemented Form I-9 compliance flexibility. The temporary flexibility rule has allowed employers that are operating remotely to forego the in-person employee verification of identity and employment eligibility documentation requirements required under Form I-9 rules. Note there is no temporary flexibility in situations for employees who physically report to work at a company location on a regular, consistent, or predictable basis. The March 2020 announcement provided additional instructions for employers who qualified for the I-9 flexibility:

Although employers with remote workers are temporarily not required to review an employee’s identity and employment authorization documents in-person, these employers must still:

  • inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.
  • enter “COVID-19” as the reason for the physical inspection delay in the “Section 2 Additional Information” field once physical inspection takes place after normal operations resume.

Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.

Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.

This temporary flexibility for employers who have not already resumed normal operations and continue to have remote workers has been extended several times.  The most recent extension was announced on April 25th, 2022, about a week before it was scheduled to end on April 30, 2022.

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