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DHS Announces Extended I-9 Compliance Flexibility

The Department of Homeland Security (“DHS”) recently issued a news release announcing a 30-day extension in I-9 compliance flexibility, to July 19, 2020, due to continued precautions related to COVID-19.

DHS made the initial I-9 compliance flexibility announcement on March 20, 2020 (available here).  In its statement, DHS recognized the difficulty employers might have attempting to physically review their employee’s identity and employment authorization documents in the employee’s presence due to COVID-19 related remote-work and social distancing guidelines.  DHS stated that it would “exercise discretion to defer the physical presence requirements associated with [Form I-9].”

According to the initial announcement, employers engaging employees in remote-work have some temporary flexibility in I-9 compliance:

  • Employers can inspect their employee’s documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents within three business days.
  • Once the employer’s normal operations resume, employees onboarded using remote verification must report to the employer within three business days to verify the employee’s identity and employment eligibility documentation in-person.

Even though DHS is granting some flexibility in I-9 compliance, there are some limitations to keep in mind:

  • Employers that avail themselves of the remote inspection option must provide written documentation of their remote onboarding and telework policy for each employee.
  • DHS has listed specific language for what should be included on the I-9 form when in-person physical inspection of documents has been delayed. Employers that take advantage of the I-9 compliance flexibility may want to review the DHS announcement carefully to ensure that their I-9 forms continue to meet DHS requirements.
  • This option is only available for employers and workplaces that are operating remotely. If employees are physically present at a work location, no exceptions are allowed for in-person verification of identity and employment eligibility documentation.

With the latest extension announced by DHS, the expiration date for these accommodations is now July 19, 2020.  While this announcement may help employers practice social distancing, it’s always a good idea to talk with your legal counsel before taking advantage of the I-9 compliance flexibility rules to make sure you stay compliant.

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