As offices nationwide closed in March 2020, the U.S. Department of Homeland Security (DHS) temporarily exempted fully remote employees from the employment eligibility verification physical inspection requirements for Form I-9 processing. At that time, DHS confirmed that employees working remotely due to COVID-19 would remain exempt from the requirements until the earlier of: 1) when the employee begins non-remote employment on a regular, consistent, or predictable basis; or 2) when DHS terminates I-9 flexibilities.
This DHS flexibility applies only to workers who were hired on or after March 20, 2020 and who are working exclusively in a remote setting due to COVID-19-related precautions. For new hires subject to these rules, employers are not required to review the employee’s identity and employment authorization documents in the employee’s presence and instead can inspect the document remotely and retain copies. Employers are required to maintain written documentation of this remote onboarding and verification, including annotating Section 2 of Form I-9 to indicate that documents were inspected remotely. Employers are later required to physically examine the documents in person and update Form I-9 accordingly once DHS terminates flexibilities or the presidential COVID-19 National Emergency declaration is terminated, whichever is earlier. If a worker begins regular, consistent, non-remote employment before either event occurs, the employer must complete the physical inspection at that time.
Since introducing this guidance in March 2020, DHS has provided near-monthly updates extending the flexibility for 30 days at a time. As of May 26, 2021, Immigration and Customs Enforcement (ICE) and DHS extended I-9 flexibility through August 31, 2021. Importantly, this guidance applies only to employers and workplaces operating remotely. Under DHS’ guidance, “If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.”
Once normal in-person operations resume for a business, all employees who onboarded with remote verification must complete in person verification within three business days. If your workforce has returned to the workplace already, you should take immediate action to ensure that all required physical inspection of documents is completed as soon as feasible.
I-9 document inspection can be carried out by the employer, or any authorized representative designated by the employer. If you have any questions about I-9 compliance, please reach out to your Parker Gallini attorney.