Form I-9 physical inspection requirement eased again until May 31
Friday, April 16, 2021

Form I-9 physical inspection requirement eased again until May 31

By Payroll and Entitlements Editorial Staff

The current extension includes guidance for employees hired on or after April 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification Form I-9, 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.

Prosecutorial discretion. On March 19, 2020, due to precautions implemented in response to the COVID-19 pandemic, DHS announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification under section 274A of the Immigration and Nationality Act. This policy only applies to employers and workplaces that are operating remotely. Where there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.

Physical presence review eased. Under the flexibilities guidance, employers with employees taking physical proximity precautions due to COVID-19 are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must still inspect the Form I-9, Section 2 documents remotely-over video link, fax, or email, for example-and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.

ICE also said that employers 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. The documents must be physically inspected within three days after normal operations resume. Once 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.

Additional information on the original flexibilities guidance, including eligibility requirements, is available here.

Look for further guidance. Going forward DHS will continue to monitor the ongoing national emergency and provide updated guidance as needed. Employers are required to monitor the DHS and ICE websites for additional updates about when the extensions will be terminated and normal operations will resume.

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