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The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) is continuing its discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA) until May 31, 2021. Previously, the flexibilities only applied to employers and workplaces that were operating remotely due to the COVID-19 pandemic and excluded employers and workplaces that opted for a hybrid remote and onsite work environment. 

In the updated guidance issued today, the DHS-ICE will no longer require 100% of an employer’s worksite to work remotely before permitting an employer to avail itself of the Form I-9 flexibilities. Rather, employers opting for a hybrid working environment may delay the in-person Form I-9 document examination requirements as it relates to the remote employee until either the remote employee undertakes non-remote employment on a regular, consistent, or predictable basis, or the DHS-ICE terminates these flexibilities, whichever is earlier.

While this updated guidance certainly provides greater flexibilities for employers, employers are encouraged to minimize their backlog of Form I-9s that require physical inspection of identity and employment authorization documents. Employers may alleviate their backlog of Form I-9s by resuming in-person examination of affected employees’ documents even while employees remain in a remote working status. Notably absent from the DHS-ICE guidance is any expressed “grace period” following an employee’s return to work or DHS-ICE’s termination of the Form I-9 flexibilities.

Each workplace is unique. If you have any questions or concerns on Form I-9 compliance or other immigration issues, contact the author or your McAfee & Taft Labor & Employment lawyer.