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 August 31, 2021. Initially, the flexibilities only applied to employers and workplaces that were operating 100% remotely due to the COVID-19 pandemic. As reported in an earlier article, those flexibilities were later extended to employers and workplaces that opted for a hybrid remote and onsite work environment, but the flexibilities were set to expire on May 31st.
In the updated guidance, effective June 1, 2021, the DHS-ICE advised it will evaluate an employer’s Form I-9 completion practices as it relates to the physical inspection requirements for completing the Form I-9 on a case-by-case basis. As explained in the previous guidance, employers opting for a hybrid working environment may delay the in-person Form I-9 document examination requirements for its remote employees 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.
Onboarding remote employees
As it relates to remote employees, 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 businesses days from the employee’s first day of employment. Once the employee resumes non-remote employment (as described above), employers are instructed to enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field. And, after the employer has physically inspected the documents, the employer should note “documents physically examined” and the date of the inspection in the Section 2 Additional Information field. Employers who wish to onboard new employees remotely must maintain written documentation of its onboarding and telework policy for each employee. Finally, the DHS-ICE has advised that in the event of an audit of subsequent Form I-9s, the DHS-ICE will use the “in-person completed date” as a starting point for the employees that were onboarded remotely.
Alleviate the backlog
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 any backlog of Form I-9s by resuming in-person examination of the affected employee’s documents even while the employee remains in a remote working status. The DHS-ICE guidance only gives an employer three business days to resume in-person inspections once normal operations resume but omits any expressed “grace period” for compliance once the DHS-ICE terminates the Form I-9 flexibilities. Even more, the DHS-ICE has warned that “[t]he employer is liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.”