UPDATE Effective April 25, 2022: The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. This temporary guidance was set to expire April 30, 2022. Because of ongoing precautions related to COVID-19, DHS has extended the Form I-9 flexibilities until Oct. 31, 2022.
The Department of Homeland Security (DHS) has again extended its physical presence requirement, this time through April 30, 2022.
Before the pandemic, a Form I-9 was required to be completed for each new hire within three business days of the employee’s first day of work for pay. On March 20, 2020, DHS announced that due to the pandemic, it would exercise prosecutorial discretion to defer the physical presence requirement associated with the employment eligibility verification for employers and workplaces that were operating remotely.
This allowed eligible employers the flexibility to inspect the Section 2 identity and employment eligibility documents remotely by email, fax, or video conferencing instead of review in person. In such case, the employer is required to retain copies of the documents, and then once the workforce is returned to the employer’s physical worksite, in-person document verification by the employer is required within three business days. If there are employees physically present at a work location, then no exception to in-person verification is permitted.
Employers who hired remote employees during the pandemic should ensure Section 2 of their employee I-9s are filled out properly as soon as employees return to the office. The United States Citizenship and Immigration Service (USCIS) has instructed employers to enter “COVID-19” in Section 2 of the Form I-9 in the “Additional Information“ field to explain why there was a delay in the physical inspection of the employee’s documents. Employers should also indicate “documents physically examined” on the Form I-9, along with the date of the inspection.
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