2022Form I-9

Written By ESR News Blog Editor Thomas Ahearn

The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have announced an extension of the flexibility in complying with requirements related to Form I-9. Due to the continued safety precautions related to COVID-19, the DHS will extend the flexibility until October 31, 2022.

On March 20, 2020, in response to public health guidance and precautions related to the COVID-19 pandemic, the DHS announced that it would exercise prosecutorial discretion to defer the physical presence requirements of the Form I-9 under Section 274A of the Immigration and Nationality Act (INA).

This policy only applied to employers and workplaces that were operating remotely. If there were employees physically present at a work location, no exceptions to the in-person verification of identity and employment eligibility documentation for Form I-9 were implemented at that time.

On April 1, 2021, the DHS updated its Form I-9 flexibility – which is still in effect through this extension – so the requirement that employers inspect Form I-9 identity and employment eligibility documentation in-person applies only to employees who physically report to work at a company on a regular basis.

Employees hired on or after April 1, 2021, who work 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 under Section 274A of the INA until they undertake non-remote employment on a regular basis.

Employers may be unable to timely inspect and verify, in-person, the Form I-9 supporting documents of employee(s) hired since March 20, 2020. In such cases, employers may memorialize the reason(s) for this inability in a memorandum retained with each affected employee’s Form I-9. 

The policy was extended many times since the first expiration date of May 19, 2020. It was extended to June 19, 2020, July 19, 2020, August 19, 2020, September 19, 2020, November 19, 2020, December 31, 2020, January 31, 2021, March 31, 2021, May 31, 2021, August 31, 2021, December 31, 2021, April 30, 2022, and October 31, 2022.

Employers should monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated and normal operations will resume. For more information about temporary policies related to COVID-19, visit www.uscis.gov/i-9-central/form-i-9-related-news/temporary-policies-related-to-covid-19.

The Immigration Reform and Control Act of 1986 (IRCA) requires employers in the United States to complete Form I-9 for all newly-hired employees to verify their identity and their employment authorization to work in the country. Both employers and employees must complete the form that is available at www.uscis.gov/i-9.

COVID-19 is a deadly respiratory illness that spreads from person to person. As of April 25, 2022, there are approximately 510 million global cases and 6.2 million global deaths, while the United States leads the world with approximately 81 million cases and 991,000 deaths, according to research from Johns Hopkins University.

Employment Screening Resources® (ESR) – a service offering of ClearStar, a leading provider of background checks, drug testing, and medical screening – provides a robust Form I-9 and E-Verify solution so employers may compliantly verify work status for a legal workforce. To learn more, contact ESR today.

NOTE: Employment Screening Resources (ESR) – a service offering of ClearStar – does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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