When the COVID-19 pandemic was recognized as a national emergency in March 2020, the U.S. Department of Homeland Security (DHS) announced that Immigration and Customs Enforcement (ICE) would permit employers to defer the physical inspection of identity and employment authorization documents when completing Form I-9, Employment Eligibility Verification. This enabled U.S. companies to hire new employees while operating remotely during COVID-19 lockdowns.
The DHS policy of flexibility was limited to employers operating remotely, with no employees physically present at a work location. Under the policy, employers may inspect identity and work authorization documents remotely (via fax, email, and/or video conference) and complete physical inspection of the original documents within three business days of resumption of normal operations. The policy also requires employers to maintain written documentation of their remote onboarding and remote work procedures. The March 2020 guidance provides more details about requirements and options for employers.
Throughout 2020, this policy was extended 30 to 60 days at a time as the pandemic continued. Most recently, ICE announced a further extension of the I-9 compliance flexibility through August 31, 2021. In addition, the DHS policy of flexibility was expanded in March to provide new accommodations for employees hired on or after April 1, 2021 who work exclusively in a remote setting due to COVID–19-related precautions. Specifically, these employees are temporarily exempt from the physical inspection requirements associated with the I-9 until they undertake non-remote employment on a regular, consistent, or predictable basis—or until the DHS policy of flexibility expires, whichever is earlier. In the latest extension, the same policy applies to new employees hired on or after June 1, 2021, who work exclusively in a remote setting.
Employers relying on these flexibilities must follow ICE guidance on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete the I-9. Employers should also monitor DHS and ICE announcements about I-9 flexibilities and the resumption of normal operations.