ICE extends Form I-9 flexibility

The permission to review Form I-9 Section 2 acceptable documentation electronically is extended 30 more days.

Posted May 20, 2020

On Tuesday, March 19, the U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibilities in rules related to Form I-9 compliance that was granted earlier this year. Due to precautions implemented by employers and employees associated with COVID-19, the Department of Homeland Security (DHS) announced that it would defer the requirement to be physically present to view acceptable documents associated with the Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act. This provision applies only to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.

This flexibility was originally implemented for 60 days and was set to expire May 19. Due to the continued precautions related to COVID-19, DHS has extended this policy for an additional 30 days.

The employee still completes Section 1 no later than the first day of employment. Then employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers should also enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.

Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.

Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.

Employers who were served notices of inspection (NOIs) by ICE during the month of March 2020 and had not already responded were granted an automatic extension for 60 days from the effective date. ICE will grant an additional extension of 30 days to these employers.

The DHS has indicated that further extensions may be implemented. At some point, the extension will end, and normal operations will resume, requiring employers to once again review the acceptable documentation in person.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.

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