Extension of Form I-9 verification flexibilities may signal major change

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.

Background

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?