DHS Extends Flexible Form I-9 Compliance Due to COVID-19 Until May 31, 2021

Form I-9 Updates

Written By ESR News Blog Editor Thomas Ahearn

The U.S. Immigration and Customs Enforcement (ICE) has announced the U.S. Department of Homeland Security (DHS) will extend the flexibilities in rules related to Form I-9 compliance due to the Coronavirus (COVID-19) pandemic – which were set to expire on March 31, 2021 – until May 31, 2021, according to an ICE news release.

On March 20, 2020, due to precautions implemented by employers and employees associated with COVID-19, the DHS announced it would exercise prosecutorial discretion to defer the physical presence requirements of the
Form I-9, Employment Eligibility Verification under section 274A of the Immigration and Nationality Act (INA).

The DHS policy only applies to employers and workplaces that are operating remotely. If 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, Employment Eligibility Verification.

The policy was implemented for 60 days and set to expire on May 19, 2020. The DHS extended it for 30 additional days four times to June 19, 2020, July 19, 2020, August 19, 2020, and September 19, 2020. The policy was then extended to November 19, 2020, then December 31, 2020, then January 31, 2021, and lastly March 31, 2021.

Effective April 1, 2021, the DHS is also providing an update to its Form I-9 flexibilities guidance. The flexibility announcement issued in March 2020 notes that DHS will evaluate certain COVID-19-related Form I-9 completion practices on a case-by-case basis as they relate to the physical inspection of Form I-9 documentation.

Accordingly, as of April 1, 2021, the requirement that employers inspect Form I-9 identity and employment eligibility documentation of newly hired employees in-person applies only to those newly hired employees who physically report to work at a company location on any regular, consistent, or predictable basis.

If employees hired on or after April 1, 2021, work exclusively in a remote setting due to COVID-19-related precautions, they 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.

These flexibilities do not preclude employers from commencing in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.

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 the 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 1, 2021, there are approximately 129 million global cases and 2.8 million global deaths, while the United States leads the world with approximately 30 million cases and 552,000 deaths, according to research from Johns Hopkins University.

Employment Screening Resources® (ESR) – a leading global background check provider that was named the #1 background check firm by HRO Today in 2020 – provides a robust solution that simplifies the Form I-9 process so employers may compliantly verify work status. To learn more about ESR, visit www.esrcheck.com.

NOTE: Employment Screening Resources® (ESR) 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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