Since March 20, 2020, the U.S. Department of Homeland Security (DHS) and its enforcement agency, the U.S. Immigration and Customs Enforcement (ICE), have issued changing guidance on how and when an employer may satisfy the Form I-9 in-person inspection requirements during the ongoing COVID-19 pandemic. Since April 1, 2021, they have allowed employers to delay in-person inspections of remote employees’ identity and employment eligibility documents. In December, the agencies extended the flexible rules by four months, meaning they won’t expire until April 30, 2022.
As the COVID-19 outbreak continues, employers are still grappling with the balance between safeguarding their workforce and complying with the Form I-9 in-person physical inspection requirements. Under the relaxation of the physical inspection rules, an employer can opt to verify a remote employee’s identity and work authorization via video link, fax, e-mail, or other means. The employer must complete the in-person inspection requirements (1) within three business days from when the remote employee reports to the company location on a regular, consistent, or predictable basis or (2) when the DHS and ICE terminate the guidance, whichever occurs first.
For well over 18 months, the DHS and ICE extended the verification flexibilities to employers in only two-month increments. But in August and again in December, the agencies granted employers a four-month extension, setting the guidance to expire on April 30.
Is Change On the Horizon?
For more than three decades, federal law has required every employer to attest on the Form I-9 that its employees are authorized to work in the United States. A critical component is the employer’s duty to inspect the unexpired original documents in the employee’s actual physical presence or risk hefty fines for noncompliance.
So, is there a major change on the horizon? Could the verification flexibilities be made permanent given the workforce’s changing composition? Maybe.
The DHS and ICE are actively reviewing the in-person inspection requirements. Employers were invited to submit written comments about their experiences in satisfying the rules, their examination practices, and the impacts of remote document examination conducted during the COVID-19 pandemic.
Potential Liability When Remotely Inspected Employee Moves On
With the uncertainty of today’s job market, one thing remains crystal clear: Employees are leaving their employers in search of more flexible and remote work environments. That sudden departure may render an employer’s Form I-9 in-person inspection requirements an impossibility and could expose the company to liability.
The DHS and ICE announced they would continue to exercise prosecutorial discretion on a case-by-case basis when reviewing an employer’s Forms I-9 for noncompliance. You should attach a written explanation about your company’s inability to timely or otherwise complete the inspection requirements to each of the affected Forms I-9. For existing employees, you or your authorized agents are encouraged to alleviate the backlog by completing the in-person physical inspection requirements.
Kate Dodoo is an attorney in the Oklahoma City, Oklahoma, office of McAfee & Taft. You can reach her at email@example.com.