DHS has extended its COVID-19 Form I-9 flexibilities until December 31, 2021, due to "ongoing precautions related to COVID-19."
The Immigration and Nationality Act requires employers to verify the employment eligibility of all employees before employment begins or continues. See INA 274A [8 USC 1324a]. This employment verification is implemented through Form I-9, Employment Eligibility Verification Form, and through DHS regulations at 8 CFR Part 274a.
Under standard rules, employers must physically examine each document submitted by the employee to establish identity and work authorization.
In May of 2020, DHS implemented the following flexibilities due to the COVID-19 pandemic:
"Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee's identity and employment authorization documents in the employee's physical presence. However, 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 also should 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."
On March 31, 2021, DHS updated its guidance to also provide:
"As of April 1, 2021, the requirement that employers inspect employees' Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis."
"If employees hired on or after April 1, 2021, work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the INA until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier."
"The flexibilities discussed here do not preclude employers from commencing, in their discretion, the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020."
Employers must keep track of employees whose documents were inspected remotely under these flexibilities, and must re‑examine those documents in-person after the end of the DHS flexibility policy or once the employee returns to "non-remote employment on a regular, consistent, or predictable basis," whichever occurs first.