Subscribe for bLAWg
updates via email

Past Articles

Back to blawg »

DHS Extends Form I-9 Requirement Flexibility Again

Share |

In what’s becoming a regular occurrence, the Department of Homeland Security (DHS) has once again extended its flexibility in complying with the requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. This is the eleventh time increased I-9 flexibility has been extended since the issuance of the initial guidance on March 20, 2020.

What the I-9 Flexibility Extension Means for Employers

The extension of increased I-9 flexibility has been a long and ongoing occurrence for employers and something we’ve detailed extensively on our blawg:  
The latest extension will run through December 31, 2021. By the end of the year, the DHS will have to decide whether to once again extend I-9 flexibility or resume “normal” operations. The DHS cautions employers to monitor both the DHS’s and ICE’s Workforce Enforcement Announcements for information about when the extensions end and normal operations resume.

What is Increased I-9 Flexibility?

The increased I-9 flexibility allows employers more maneuverability when reviewing an employee’s identity and employment authorization documents, enabling them to verify an employee’s identity and authorization documents remotely using fax, email, or a video link. Employers should enter “COVID-19” as the reason for the delay of physical inspection. When “normal” operations resume, employers have just three business days to physically inspect the documents. 
It’s worth noting there are different standards for who qualifies for increased I-9 flexibility depending on the date an employee was hired:
  • Employees hired before May 31, 2021, only qualified for I-9 flexibility if their workplaces were operating totally remotely—that is, no employees were physically present at a work location. 
  • Employees hired on or after April 1, 2021, are offered more leeway and only need to work in a remote setting due to COVID-19 precautions to qualify for increased I-9 flexibility, as the DHS and ICE made adjustments in order to accommodate for evolving workplaces.    
Employees hired on or after April 1, 2021, will remain exempt from physical document inspection requirements until they return to non-remote work on a regular, consistent, or predictable basis, or the increased flexibility related to I-9 is terminated. Employers returning to a hybrid office/work-from-home arrangement that completed I-9s remotely will need to verify I-9 documentation in person within three days, once return to work is initiated.  

Increased I-9 Flexibility Going Forward

It’s difficult to predict how the DHS will handle increased I-9 flexibility going forward, but given that it has been extended numerous times, and COVID-19 continues to disrupt workplaces, it’s likely it will get extended again at the start of 2022. Then again, there is a chance that the flexibility could end one day without warning. 

The Challenge of Increased I-9 Flexibility  

Increased I-9 flexibility has provided a valuable solution to employers dealing with the challenges presented by COVID-19, but it also poses some serious issues for employers. Most notably challenged are employers that have hired a large number of employees who completed their I-9s through the exception—they’ll have just three days to complete an in-person review of required documentation when “normal” operations resume. 
Furthermore, employers must provide written documentation of their remote onboarding and telework policy for every employee. Proactive businesses will want to have a plan in place to remain in I-9 compliance by verifying these employees’ documentation within the three-day window. 

GoffWilson Immigration Law

GoffWilson has more than 30 years of experience practicing immigration law and is a trusted partner to businesses of all sizes in I-9 compliance—assisting through comprehensive company audits, training workshops, and public training seminars. If you have a question about what the latest extension means for your business or want to develop a strategy for when “normal” operations resume, GoffWilson can help. Contact GoffWilson today to learn how we can assist your business in navigating I-9 regulations or any immigration issues. Immigration isn’t just what we do, it’s our passion.
Filed under:Form I-9 Compliance