DHS Extends Form I-9 Flexibilities Once Again

November 20, 2022

The Department of Homeland Security (DHS) and the US Immigration and Customs Enforcement (ICE) agency announced that they extended the policy for remote flexibility in completing the Form I-9 document verification requirement until July 31, 2023.

This policy, enacted initially in March 2020, permitted workplaces that switched to operating remotely to verify the documentation of their new hires. This policy also deferred the physical presence requirement under Section 274A of the Immigration and Nationality Act (INA). Initially, the policy should have expired on May 19, 2020, but received several extensions since then.

The flexibility policy the DHS initially released allowed employers to defer the in-person inspection requirement if their workplaces operated remotely due to COVID-19. This policy permitted employers to inspect new hires’ identity and work authorization documentation through remote means such as email, fax, or video call.

Employers could then use the “Additional Information” field to explain that they used this flexibility in inspecting an employee’s documentation once they returned to a physical work location on a regular, consistent, or predictable basis. However, in the numerous extensions which have occurred since this original policy, the DHS has loosened this policy to allow more employers to avail themselves of these flexibilities.

This policy now extends to employees hired on or after April 1, 2021. Furthermore, the employees must exclusively work in a remote setting as part of the COVID-19 precautions. They may utilize this flexibility until they return from remote work on a regular, consistent, or predictable basis. Otherwise, they can use this flexibility until the policy ends.

Employees with documentation verified via remote means must report for physical verification within three business days of the employer returning to normal operations or after the National Emergency for COVID-19 ends. However, due to the unlikeliness that many employers can reliably meet this deadline, many experts expect modifications to this requirement before the time comes to enforce it.

However, the DHS has encouraged employers not to delay verifying their employees’ identity and work authorization. At their discretion, employers or third-party agents may perform the physical examination at any time.

The DHS encourages employers or representatives to note whether physically inspected documentation underwent virtual inspection beforehand. They also encourage employers to include the inspection date in the Additional Information field of Section 2.

As these and other continuously shifting requirements have shown throughout the pandemic, it can prove extremely difficult for employers and their HR personnel to keep up with employment eligibility requirements. The best way for these employers to comply is to use an electronic Form I-9 management system. This tool can guide hiring personnel to complete the employment eligibility verification process and ensure secure storage of forms and documentation.

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