DHS Extends I-9 Compliance Flexibility

On April 25, 2022, the U.S. Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) agency announced an extension of compliance flexibility related to Form I-9 employment eligibility verification requirements until October 31, 2022.

ICE first announced this policy on March 20, 2020, due to the COVID-19 pandemic. ICE provided guidance stating that employers would not be required to review employee identity and work authorization documents in the physical presence of employees until the resumption of “normal operations,” and employers would instead be allowed a virtual review option.

On March 31, 2021, ICE provided an update to the policy, stating that for employees hired on or after April 1, 2021, and working exclusively in remote settings due to COVID-19–related precautions, the virtual review option is available until the end of the flexibility policy in general or until the employees undertake non-remote work on a regular, consistent, or predictable basis, “whichever is earlier.”

Below are a few points that employers may want to keep in mind as this compliance flexibility policy extends into October 2022:

• From the start of the flexibility on March 20, 2020, until the policy update on March 31, 2021, ICE’s position was that an employer’s entire workforce must have been 100 percent remote in order to use the virtual review option, though ICE also indicated that any future audits or enforcement actions would be handled on a case-by-case basis.
• Since April 1, 2021, the virtual review option has been available only for employees working remotely due to COVID-19 precautions. Employees choosing to work remotely for any other reason must have their I-9 document verification conducted in person, in accordance with standard I-9 verification procedures.
• ICE’s initial guidance indicated that as soon as the flexibility policy expired, all I-9 verifications that utilized the virtual review option would need to be verified in person within three business days. Under the updated guidance, the in-person verification process is triggered by either the expiration of the flexibility policy or an employee’s commencement of non-remote employment on a regular, consistent, or predictable basis, whichever occurs first.
• According to DHS, once either of the two conditions above occurs for any given employee, an employer must coordinate an in-person meeting with the employee, review physical I-9 documents, and, once the physical inspection has taken place, add the following notations to Section 2’s “Additional Information” field or to Section 3 of Form I-9, as appropriate: the phrase “documents physically examined,” the date of the inspection, and the initials of the reviewer. DHS has provided examples.
• Employers may “designate an authorized representative to act on their behalf” to complete the in-person verification process for new remote hires (COVID-19-related or not) or to work through backlogs of virtually reviewed I-9 documents that have built up over two years. While this option gives employers increased flexibility, employers may want to provide detailed instructions to representatives, provide real-time assistance, and/or have a review process in place to ensure accuracy.

Because it is unclear how much longer the I-9 compliance flexibility will be extended, ICE has encouraged employers to commence, in their discretion, in-person verification of I-9 documentation presented by employees hired since March 20, 2020, that were inspected remotely.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the firm’s Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.