Updated: Temporary Flexibilities for Remote Document Examination for Form 1-9 Extended


Temporary Flexibilities for Remote Document Examination for Form I-9 Extended Again

In March 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) instituted a temporary policy which allowed employers with a remote workforce to defer physical presence requirements associated with Form I-9 and Section 274A of the Immigration and Nationality Act. Initially applicable only to employers with an entirely remote workforce, the flexibilities were extended in April 2021 to include all employers who hire remote employees on or after April 1, 2021, if such employees were hired to exclusively work remote due to the employer’s COVID-19 policy. Under this guidance, exclusively remote employees are exempt from the physical inspection requirements until non-remote employment is undertaken, or new guidance around the requirements has been issued. Once normal operations resume or the National Emergency ends, employees that were onboarded using remote verification will need to report to their employer within three (3) business days for in-person physical verification.

Previously, this guidance was set to expire October 31, 2022, but has now been extended again until July 31, 2023. DHS has taken steps to evaluate if this policy should be made permanent. However, while additional guidance is pending, employers using virtual inspection methods should prepare to revert back to pre-COVID-19 operations and begin in-person inspections of identification documents absent additional extensions in October. Employers, at their discretion, may wish to consider reinstituting in-person verification of employment eligibility and identity verification documentation for those employees affected by aforementioned flexibilities prior to October 31 in an effort to streamline the process and reduce the number of documents they need to reevaluate should the policy not be made permanent.

New Form I-9 is Pending

The Department of Homeland Security (DHS) has released guidance instructing employers to continue using the current Form I-9, which is set to expire October 31, 2022. DHS announced it will publish a notice to the Federal Register to announce the new version once it becomes available.

Among other things, the proposed changes include the following:

  • Reducing the Form’s instructions from 15 pages to 7 pages,
  • Updating the List of Acceptable Documents to allow for a link to the List C documents issued by DHS,
  • Consolidating Sections 1 and 2 to reduce paper use,
  • Moving Section 3 to its own Reverification and Rehire Supplement, which would only be accessed if needed, and
  • Removing the PDF enhancements currently in place to allow users to view and complete the document from any electronic device.

To view the previously released Compliance update regarding the Form I-9 Temporary Flexibilities for Expired List B Identity Documents, please see here.

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