Form I-9 Flexibility Policy Extended Through April 2022


United States Immigration and Customs Enforcement (ICE) has announced an extension to its flexibility policy for the Form I-9 that was granted last year in response to the COVID-19 pandemic. Now the Department of Homeland Security (DHS) has announced that it will extend this policy in response to continued precautions until April 30th, 2022.

Under this extension, employers may continue to apply guidance the DHS has issued for employees hired after April 1st, 2021, that exclusively work in a remote setting in response to precautions associated with COVID-19. Employees that meet this requirement are exempt from physical inspection requirements until such time as they begin to perform non-remote work on a regular, consistent, or predictable basis or until the termination of the flexibility policy itself.

This guidance has not changed from the previously issued guidelines, which many employers have likely already become familiar with. However, it is still critical to remember that this guidance only applies to remote employees, and should an employee return to the office, they must undergo the physical inspection requirements within three days.

Many employers have advocated for the flexibility policy, which many have feared would disappear at the end of the year, to remain as a permanent rule. Even though a number of employees are returning to physical worksites, many are expected to remain working remotely as this gradually becomes a more regular part of the workplace.

By allowing employers to perform the Form I-9 verification process remotely, employers can assign experienced personnel to review it without needing to assign the task to outside agents. It would also make it easier to hire remote workers as a whole, including individuals who may not have another option, such as those with disabilities that prevent them from working in the office or easily attending an in-person verification process.

The DHS has indicated the potential of creating such a permanent policy by seeking public input on a permanent remote review rule. However, as of yet, there is still little to go from when such a rule may happen. For now, employers should still prepare if the rule were to end on April 30th, 2022.

Employer Takeaways

This new extension gives employers some breathing room before they will need to comply with the in-person verification requirement for their remote workforce. However, in order to be prepared for the new deadline, employers should ensure they have a list of all employees who were verified digitally and ensure they identify the staff responsible for conducting the in-person verification. These individuals should be trained and equipped with the tools they need to get the job done, including an electronic I-9 management tool that can help ensure the process is completed correctly and that the documents are securely stored for review when they are needed next.