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U.S. Immigration and Customs Enforcement (ICE) has announced yet another extension to the more flexible I-9 compliance rules for remote workers, which were first announced back in March of 2020. This announcement extends previously issued guidance until December 13, 2021. It specifically applies to workers hired on or after April 1, 2021 who work exclusively remotely due to COVID-19-related precautions. Below is a quick refresher on the current status of the flexible I-9 compliance rules.

Can All Employers Inspect I-9 Documents Remotely?

Up until April 1, 2021, DHS required in-person Form I-9 document inspection if the employer had any employees physically present in the workplace. Now, employers can comply with all Form I-9 requirements by inspecting documents remotely for certain new hires, even if some employees are physically present in the workplace.

Which Employees’ Form I-9 Documents Can We Inspect Remotely?

Employees hired on April 1, 2021 or after who are working remotely are exempt from the in-person examination of their Form I-9 identify and employment eligibility documentation. As stated above, this is true even if some employees are working in person.

However, once the employee starts coming into the workplace on a regular, consistent, or predictable basis, this flexibility ends, and the employer must physically inspect the Form I-9 documents. The flexible remote inspection policy may also end at DHS’s discretion.

What Should We Do About Physical Inspection Backlog?

DHS has been permitting remote inspection of Form I-9 documents since March 20, 2020. This means employers probably have quite the backlog of Form I-9s and identity and employment eligibility documentation that need physical inspection. Employers may choose to begin physically examining affected employees’ Form I-9 identity and employment eligibility documentation before the employees return to the workplace for in-person work. When completing the physical inspection, employers should write “COVID-19” as the reason for the physical section delay under in the Additional Information field in Section 2.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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