ICE has announced it will extend I-9 flexibility until April 30, 2022, due to continuing precautions related to COVID-19.

The guidance remains the same:

  • Employees who work exclusively in a remote setting due to COVID-19 continue to be temporarily exempt from the in-person requirements associated with Form I-9 Employment Eligibility Verification, until they start working at a worksite on a regular, consistent, or predictable basis (or until flexibility is terminated).
  • As before, ICE reiterates that, if employees are physically present at a work location, flexibility does not apply.

Advocates have been encouraging the Department of Homeland Security (DHS) to continue this flexibility indefinitely because, although many employees are returning to worksites, remote work will continue to play an important role in the 21st century workplace.

The ability to conduct Form I-9 verifications remotely allows companies to centralize their I-9 processes so that experienced staff can conduct the reviews, to eliminate the need to hire agents who may not be as experienced to conduct remote verifications, and to make it easier to hire key employees who may work remotely. Moreover, it would eliminate barriers to hiring individuals for whom remote work is a necessity, such as those who live in rural areas or have physical disabilities that make it impossible to attend an in-person I-9 verification.

Employers should continue to prepare for the possible end of flexibility by:

  • Keeping track of employees who have been verified virtually, when they will be returning to work, and the deadline for in-person verification; and
  • Identifying and training staff to conduct the necessary in-person reviews.

Employers should also review the newly adopted process for verifying employment authorization for individuals with long-pending H-4, E, and L-2 EADs.

Jackson Lewis attorneys are available to assist you in instituting compliant Form I-9 processes and policies.