Is Your Company Ready for the End of Remote I-9 Flexibility?

On December 31st, 2021, the I-9 remote inspection flexibility policy is set to expire. Is your company ready for the steps that follow? If not, then let’s see what your company needs to know about the temporary flexibility policy and what comes next so that you can remain compliant with the start of the new year.

What Is the I-9 Flexibility Policy?

As COVID-19 set in. the Department of Homeland Security (DHS) chose to provide employers with flexibility on whether to perform in-person verification of employee provided documents for the identity and employment authorization requirements of the Form I-9; this policy meant that employers that were operating in a remote capacity as a result of the pandemic could perform the required verification of these documents remotely through tools such as video calls, or fax. Since this policy began in March of 2020, it has been expanded repeatedly to continue providing flexibility for employers throughout the pandemic.

This policy initially only provided flexible verification requirements for employers that were operating on a 100% remote basis; however, after April 1st, 2021, the DHS announced an expansion to include workplaces that include some employees working in a fully remote capacity. Under this expansion, employers were permitted to use the remote verification option for employees that worked fully remotely whether or not others worked from the employer’s physical workplace. Until the employee begins working at the employer’s physical worksite on a regular or predictable basis, they will be exempt from Form I-9’s physical verification requirements. However, this will end sooner should the DHS’s flexibility policy end prior to an employee’s return to a physical workplace.

What Is the Status of the I-9 Remote Inspection Policy?

After several renewals since the policy’s introduction, it is currently slated to expire on December 31st, 2021. Currently, it is difficult to say whether or not the DHS will choose to extend the policy further. However, whether it expires at the end of 2021 or later when it does occur, employers will need to have any employees that used the remote verification method report for physical verification of their identity and employment authorization documents. This must occur within three business days of the policy’s expiration in order to satisfy Form I-9 requirements. For employers that are already attempting to shift back to in-office work, it would be wise to begin taking these steps before the policy ends to reduce the burden when the policy does end.

How Can Employers Prepare for the Policy’s Expiration?

Given the difficulty in calling whether the DHS will extend the policy, it would be wise to begin preparations for physically inspecting employee documentation. Some steps to take include:

  • Prepare a list of all employees that have been virtually verified. This should include dates for when they will return to work physically if applicable and when the deadline will be for performing a physical verification.
  • Designate who will be verifying employee documents. This could be a designated outside agency if the employer wishes.
  • Consider having an outside agency conduct the verifications prior to the policy’s expiration. This will reduce the burden when the policy expires and potentially prevent needless penalties for noncompliance.

Next Steps for Employers

For many employers catching up with Form I-9 requirements, it may prove extremely difficult. However, the best way to remain compliant is with an electronic I-9 management tool. This can keep all your employee’s forms organized and help assist you in keeping track of important deadlines to help ensure you are never late for filing deadlines.