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Form I-9 COVID-19 Flexibility May End Soon - Physically Review ASAP!

On March 20, 2020 the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification (Form I-9), due to COVID-19 for employers that are, or were, operating remotely.

This flexibility deferred the physical presence requirements associated with Form I-9, Section 2, to complete the review of acceptable documents to determine identification and authorization to work in the United States. Business Information Group has previously reported on these flexibility requirements.

During this "flexibility period" employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee's identity and employment authorization documents in the employee's physical presence. However, employers must 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 (3) business days for purposes of completing Section 2.

DHS and ICE extended the flexibility ten times over the past year and a half. The current extension (through August 31, 2021), includes guidance for employees hired on or after June 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Form I-9 until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.

Once normal operations resume, all employees onboarded using remote verification must report to their employer within three (3) business days for in-person verification of identity and employment eligibility documentation for Form I-9. ICE noted, "Employers also should 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." Moreover, once the the employer physically inspects the documents they should add "documents physically examined" with the inspection date to the Section 2 "additional information field" on the Form I-9, or section 3 as appropriate.

Three (3) business days does not provide much time for employers that may have accumulated a high volume of new hires that completed their Form I-9 through the exception. We therefore highly encourage employers who have resumed "normal" operations and who have taken advantage of these rare flexibility rules to start the in-person review of the documentation as soon as possible to comply with the three-day rule.

For more information, visit: https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/dhs-extends-form-i-9-requirement-flexibility-effective-june-1-2021

Posted: June 16, 2021


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