Update On Form I-9 Flexibilities

Volume: 21 | Issue: 23
May 5, 2022

The flexibilities permitted by the U.S. Immigration and Customs Enforcement (ICE) toward Employment Eligibility Verification Form (Form I-9) compliance during the pandemic are ending. Employers should be prepared to return to full and regular Form I-9 compliance by October 31, 2022, and should begin completing in-person verifications for those employees who were verified virtually during the pandemic. 

The Department of Homeland Security (DHS) first announced that it would defer the physical presence requirements associated with Form I-9 for employers and workplaces operating remotely in March 2020. On March 31, 2021, ICE announced that for all employees hired on or after April 1, 2021, the flexibilities would continue only for those working “exclusively in a remote setting due to COVID-19-related precautions” and only until they “undertake non-remote employment on a regular, consistent, or predictable basis or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.”

This policy was repeatedly extended during the pandemic but was scheduled to end on April 30, 2022. On April 25, 2022, however, DHS and ICE announced that the flexibilities will now extend until October 31, 2022.

Despite this extension, it is wise to begin working toward returning to full Form I-9 compliance now as we do not expect further extensions to be given. Any employee whose identity and eligibility to work was verified virtually during the pandemic should be required to report for in-person verification so that the employer can physically examine the employee’s original identity and work authorization documentation in the presence of the employee. ICE has provided additional information on how you should document this process, as well as visual examples.

KZA attorneys are available to answer your questions or assist you with this process. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.

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