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The DHS Extends I-9 Flexibility and Expands its Scope

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The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) has extended their Form I-9 flexibility policy an additional 60 days—it’s now set to expire on May 31, 2021. They have also altered the language of the original guidance to broaden its scope.  

I-9 Flexibility Timeline  

The guidance that expanded I-9 flexibility was originally instituted on March 19, 2020, in response to a vast swath of U.S. businesses transitioning their workforce to remote operations because of COVID-19. This is the ninth time the policy has been extended since its implementation, a process we have detailed extensively on our blawg: 
It’s also a process we continue to monitor and advise clients on as businesses look toward the future, and begin to resume “normal” operations. 

I-9 Flexibility Expanded Range

One notable change in the updated guidance alters who this provision affects. Prior to the latest guidance, eligibility was limited to “employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented…” In a concession to today’s evolving workplace, the DHS and ICE have expanded the scope of whom the provision applies to, which now includes “employees hired on or after April 1, 2021” who “work exclusively in a remote setting due to COVID-19-related precautions…”
This change allows some flexibility for companies with only small teams working in the office—such as security or IT—while the majority of their workforce is still operating remotely. It also accommodates businesses slowly phasing onsite employees back in. It’s important to note that this provision isn’t retroactive, but only applies going forward. 

Looking Ahead at I-9 Flexibility

The latest increased I-9 flexibility provision has assuaged some concerns of employers, but questions remain moving forward, the largest of which revolves around the termination of the guidance. Employers are encouraged to monitor the DHS and ICE websites for additional updates regarding the status of Form I-9 completion flexibilities and there is some fear that the policy could end one day without warning. For this reason, we encourage employers to update I-9s in person whenever possible. 
We are advising employers to have a strategy for when this guidance expires and normal I-9 processing resumes. Currently, businesses will have three days after the policy ends to inspect documents, update expired List B documents in person, and ensure original forms are accounted for. We also suggest that employers first confirm they’re eligible to take advantage of the expanded scope of I-9 flexibility before moving to virtual completion. 

GoffWilson Immigration Law

The fluidity of the order makes it challenging for businesses to form and implement long-term I-9 compliance plans, but GoffWilson can help. For more than 30 years, we have practiced immigration and have been an important resource—through comprehensive company audits, training workshops, and public training seminars—for businesses of all sizes committed to remaining in I-9 compliance. Contact GoffWilson today to learn how we can help your business navigate the ever-changing I-9 regulations.
Filed under:Form I-9 Compliance