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Additional Guidance Regarding Form I-9 Flexibility Rules Due To COVID-19

09.03.2021

The U.S. Department of Homeland Security (DHS) has once again extended the flexibility rules in place for Form I-9 completion until December 31, 2021. The flexibility rules were first announced on March 20, 2020 and have been extended several times since (and are anticipated to continue to be extended for the foreseeable future).

As previously reported here, Form I-9 Flexibility During the COVID-19 Pandemic and for Remote Workers, the flexibility rules allow employers who have transitioned to remote work as a result of COVID-19 to examine Form I-9 documents utilizing virtual mechanisms such as video, email, or fax. This differs from the usual rule which requires all documents to be examined in person. An employer taking advantage of the Form I-9 flexibility rules is required to retain copies of the documents presented virtually, complete physical inspection of the documents within three business days after normal operations resume, and provide written documentation of its remote onboarding and telework policy for each employee. Further, the Additional Information box in Section 2 of the Form I-9 must be annotated with COVID-19 and the date of remote inspection and subsequent date of physical inspection.

The original I-9 flexibility rules applied only to employers and workplaces that were 100% remote. According to the original announcement, “[i]f there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification.” However, in the event employees are subject to COVID-19 quarantine or lockdown protocols, DHS indicated it would evaluate the flexibility rule on a case-by-case basis.

The I-9 flexibility rules were revised effective April 1, 2021. Under the revised rules, new hires working exclusively in a remote setting due to COVID-19-related precautions are temporarily exempt from the physical inspection requirements associated with the Form I-9 process until they undertake non-remote employment on a regular, consistent, or predictable basis, or DHS terminates the flexibility rules, whichever is earlier.

The revision is a welcome change because the flexibility rules for a new hire on or after April 1, 2021 hinges on the new hire’s work location, rather than whether there are any colleagues physically present at a work location.

With these developments, and in light of the fluid nature of return-to-work plans, employers should determine whether their workplace qualifies for the flexibility rules and plan ahead for if and when the flexibility rules are terminated by DHS to ensure compliance.

General Dos and Don’ts

DO keep a record of employees who were onboarded on or after March 20, 2020 when the flexibility rules were first announced, as well as employees onboarded on or after April 1, 2021 when the flexibility rules were revised.

DO determine who will be conducting in-person verification and train staff on how to do so.

DO ask employees who were verified virtually and who are returning to work in person to report within three business days of their return for in-person verification.

DON’T wait until the policy expires to begin verifying employee’s documents in person. We recommend doing so as often as possible to avoid a rush if and when the policy ends.

If you have questions regarding the Form I-9 flexibility rules, please contact a member of Koley Jessen’s Employment Group.

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