DHS and ICE Extends I-9 Completion Flexibility through July 31, 2023

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) authorities have again extended flexibility in completing Form I-9 due to safety considerations during the ongoing COVID-19 pandemic. The DHS and ICE have extended this flexible policy through July 31, 2023.

As we reported in our March 2020 News Alert, due to the prevalence of work-from-home arrangements during the ongoing COVID-19 pandemic, the DHS granted employers with all-remote workforces temporary flexibility with regard to how they may complete the requisite review of Form I-9, Section 2 documents. Under Section 274 of the Immigration and Nationality Act, this review must be completed within three days of a new employee’s start date, or before a foreign national’s temporary work authorization expires. The review must normally be completed physically, in-person. Employers whose entire workforces were working remotely due to the pandemic were temporarily permitted to complete the requisite I-9 employment verification and reverification procedures remotely for new hires who started work by March 31, 2021 and retain copies of remotely reviewed documents. This temporarily flexibility through March 31, 2021 was only granted to employers with all-remote workforces. Employers with any employees who were physically working in its offices were not eligible to take advantage of these temporary procedures, unless one of their new hires or existing employees was subject to COVID-1-9 related quarantine. Should such a situation arise, employers were able to designate an authorized representative to complete Form I-9 on its behalf.

On March 31, 2021, and effective April 1, 2021, DHS provided the following update – which will remain in effect through the July 31, 2023 extension – to its Form I-9 flexibilities:

The initial flexibility announcement issued on March 20, 2020, notes that DHS will evaluate certain COVID-19 related Form I-9 completion practices on a case-by-case basis as they relate to the physical inspection of Form I-9 documentation. Accordingly, as of April 1, 2021, the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis.

If employees hired on or after April 1, 2021 work exclusively in a remote setting due to COVID-19 related precautions, they are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the INA 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. (emphasis added)

Please reach out to your attorney at McCown & Evans regarding specific questions regarding I-9 verification.