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DHS and ICE Extends Form I 9 Requirement Flexibility

On April 25, the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), announced an extension of its Form I-9 policy flexibilities due to continued safety precautions related to COVID-19. The extension was set to expire on April 30, 2022, and it will now be extended until October 31, 2022.

The policy allows employers to defer the in-person requirements for completion of Form I-9. When first put in place back in March of 2020, the policy only applied to employers and workplaces that were working entirely remotely. However, the policy was expanded to cover all employers who hire employees on or after April 1, 2021, to exclusively work remotely due to the employer’s COVID-19 policy.

The policy defers in-person inspection of documents until the remote employee undertakes non-remote employment on a regular, consistent or predictable basis, or the extension of the flexibilities related to this requirement is terminated, whichever is earlier. In-person verification of documents still applies to those employees who physically report to work at a company location on any regular, consistent or predictable basis.

Next Steps for Employers

It is recommended that employers who utilize this exception document the reason(s) for the inability to complete in-person verification in a memo to be retained with each affected employee’s Form I-9. Any documented reason(s) may be evaluated, on a case-by-case basis, by DHS and/or ICE in the event of a Form I-9 audit.

When the extension ends, employers will be required to verify identity and employment authorization documents in-person for employees onboarded remotely during the pandemic within either (1) three days after the employee began working at the employer’s premises on a regular and consistent basis, or (2) three days after the COVID-19 national emergency ends or (3) ICE terminates the policy, whichever comes first.

Alternatively, to avoid the need to physically inspect a backlog of original identity and employment authorization documents, employers may decide to follow the normal procedures for completing Form I-9 for remote hires which is as follows:

  • Designate an authorized representative to fill out Forms I-9 on behalf of their company, including personnel officers, foremen, agents or notary public. The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. If an authorized representative fills out Form I-9 on behalf on the employer, the employer is still liable for any violations in connection with the form or the verification process.
  • When completing Form I-9, the employer or authorized representative must physically examine, with the employee being physically present, each document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. Reviewing or examining documents via webcam is not permissible.
  • If the authorized representative refuses to complete Form I-9 (including providing a signature) another authorized representative may be selected. If the employer hires a notary public, the notary public is acting as an authorized representative of the employer, not as a notary. The notary public must perform the same required actions as an authorized representative. When acting as an authorized representative, the notary public should not provide a notary seal on Form I-9.

HR Works will continue to monitor the DHS and ICE websites for additional updates regarding the status of Form I-9 flexibilities and provide updated information as needed.

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.