Form I-9: COVID-19 flexibility extended to October 31, 2022

Posted April 29, 2022

An extension from the U.S. Immigration and Customs Enforcement (ICE) gives employers the option to inspect Form I-9 documents virtually through October 31, 2022.

The flexibility policy had been set to expire on April 30. On April 25, the agency announced that the policy has been extended due to continued safety precautions related to COVID-19.

The policy, originally put in place on March 20, 2020, allows employers to inspect Form I-9 documents virtually (such as by email, secure upload, or fax) for employees working remotely due to COVID-19.

Once employees are in the office regularly, or when the flexibility period ends, the physical documents must be examined in person.

Why is this flexibility helpful?

Normally when employees begin work, an employer must physically inspect documents, such as a passport, driver’s license, or social security card, to complete Section 2 of the Form I-9. The section must be completed within three business days of the employee’s start date.

The option of a virtual inspection lets remote workers avoid the travel required for an in-person document inspection, allowing them to begin working more quickly.

No exception for employees in the office

If employees are physically present at a work location, there is no exception to the in-person verification of identity and employment eligibility documentation for Form I-9. The physical documents must be inspected.

Authorized representative option

Employers also have the option of designating an authorized representative to examine the documents and complete section 2. The authorized representative can be any person the employer designates to complete and sign the Form I-9 on their behalf.

The employer is liable for any violations in connection with the form or the verification process, including violations committed by the person acting on the employer’s behalf, however.

What should employers do now?

Employers using virtual inspection for remote employees should:

• Keep track of employees who had documents inspected remotely and will need to have their documents inspected in-person,
• Have a plan for contacting employees who will need to have documents inspected in-person,
• Have a plan for document inspection by authorized agents or at the worksite, and
• Understand how to update the Form I-9 after the review has been completed.

Employers do not need to wait until the flexibility period ends to do the in-person inspection. They could inspect the documents and update the form at any time.

What if an employee leaves the company before documents are inspected?

If an employee leaves the company before the Form I-9 documents are inspected and verified in-person, the employer should note this in a memo attached to the employee’s Form I-9.

In the event of an audit, this information will be evaluated on a case-by-case basis by ICE and the Department of Homeland Security.

This article was written by Terri Dougherty of J. J. Keller & Associates, Inc.