ICE and DHS Announce Another 30-Day Extension for Form I-9 Flexibility

On March 20, 2020, the Department of Homeland Security announced it would not require employers to physically examine Form I-9 documents in the presence of new employees if the employer was operating remotely due to COVID-19. This policy has once again been extended and is now set to expire on July 19, 2020. This should sound familiar—a recent HR Tip of the Week discussed the first extension of this policy!

As a quick refresher, the rule announced back in March permits employers to examine Section 2 documents remotely (via video chat, fax, email, etc.) instead of physically and in the presence of the new employee, as is normally required. Employers who examine documents this way must list “COVID-19” in the “Additional Information” field for Section 2 to identify the reason for the delay of the physical examination. Once normal operations resume, the employer has three days to do an in-person physical examination of the documents. Once this is performed, employers must note the documents were physically examined and include the date of the examination in the “Additional Information” field. It is important to note this rule only applies to workplaces that are operating remotely. If there are employees physically present in the workplace, then employers must examine the Form I-9 documents in person as it normally would.

Additionally, employers who were served notices of inspection (NOIs) by the U.S. Immigration and Customs Enforcement (ICE) anytime in March 2020 were initially granted an automatic extension of 60 days from the effective date. ICE has now granted an additional 30-day extension to these employers. However, employers shouldn’t get used to these extensions—ICE does not expect to issue any more.

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.