DHS Extends and Updates I-9 Temporary Flexibility Procedures as Covid-19 Pandemic Lingers

The Division of Homeland Safety (DHS) just lately prolonged its Form I-9 temporary flexibility procedures for deferring bodily inspection of paperwork. DHS first applied these flexibility procedures in the beginning of the pandemic and has granted a number of, temporary extensions. Underneath DHS’s most up-to-date extension, the flexibleness procedures might be in impact by December 31, 2021. DHS additionally expanded the circumstances during which employers might depend on these procedures to finish the Kind I-9, Employment Eligibility Verification.

Temporary Recap: I-9 Temporary Flexibility Procedures

As we defined in additional element in a prior submit, in March 2020 DHS issued the I-9 momentary flexibility procedures as employers moved to distant operations due to the pandemic. The common Kind I-9 procedures require the employer to fulfill in particular person with the brand new rent or current worker (for reverification). Throughout this in-person assembly, the employer bodily inspects the paperwork offered by the worker to indicate id and employment authorization (new rent) or employment authorization (reverification). The employer should examine these paperwork inside three enterprise days of rent or, within the case of reverification, by the date on which the prior proof of employment authorization expires. Employers with distant operations are unable to finish the required bodily doc inspection.

Underneath the flexibleness procedures, qualifying employers might conduct a digital overview of the I-9 paperwork and briefly defer the bodily inspection of these paperwork. When conducting the digital inspection, the employer should verify the character of the inspection within the “Additional Information” discipline in § 2 of Kind I-9. For instance:

COVID-19: Distant inspection accomplished on mm/dd/yyyy

Employers then should full the bodily doc inspection inside three enterprise days after (1) returning to “normal operations” or (2) DHS’s termination of the momentary flexibility procedures, whichever happens earlier. When the employer completes the in-person bodily inspection of the I-9 paperwork, the employer additionally ought to verify within the Further Data discipline. For instance:

COVID-19: Paperwork bodily examined on mm/dd/yyyy. [Enter initials if the same person who completed the virtual document inspection also completes the physical document review; if a different person reviews the documents, state the new person’s full name and job title]

Employers that use digital I-9 software program might have problem making the required entries within the “Additional Information” discipline. Such employers might use a paper Kind I-9 to finish the Further Data entries. These employers ought to produce the digital Kind I-9 and the related paper Kind I-9 throughout a authorities I-9 inspection.

Extensions and Updates: I-9 Temporary Flexibility Procedures

The flexibleness procedures have been initially applied for 60 days and obtainable solely to these employers that have been working completely in a distant setting. Employers that engaged in each distant and onsite operations weren’t eligible. This was true even when the employer’s hybrid operations consisted of only some important employees onsite whereas all different workers labored remotely. Though DHS has prolonged the flexibleness procedures in brief increments a number of occasions, it has been reluctant to broaden the attain of the procedures. Lastly, with many employers nonetheless on hybrid distant operations in 2022, DHS made useful refinements to its flexibility procedures. DHS additionally granted its longest extension of the flexibleness procedures (by December 31 of this yr).

Underneath the updated flexibility procedures:

  • Employers with hybrid operations might use the momentary procedures as to sure workers. Extra particularly, employers hiring people on or after April 1, 2021 might depend on the momentary procedures if the brand new hires will work remotely due to COVID-19. The employer will not be required to finish bodily inspection of the paperwork offered for §§ 2 or 3 till the sooner of three enterprise after the date on which (1) the worker stories to the employer’s places of work on a “regular, consistent, or predictable basis” or (2) DHS terminates the I-9 momentary flexibility procedures.

  • In deciding whether or not an employer is roofed by the I-9 flexibility procedures, DHS now focuses on the worker’s work location moderately than on whether or not the employer’s operations are absolutely distant.

The distant project should be due to COVID-19. If an worker is mostly assigned to the sector (a conventional distant worker), the employer should full Kind I-9 underneath the common guidelines, together with bodily inspection of the paperwork inside three enterprise days.

  • For brand spanking new authorities inspections, DHS will take a case-by-case strategy when evaluating an employer’s I-9 compliance through the pandemic. DHS might think about whether or not the employer was working outdoors of regular enterprise operations due to COVID-19 and whether or not the employer used digital doc overview as a part of its affordable precautions to maintain workers secure. Along with these and different elements, DHS might think about whether or not the employer adopted and documented its use of the momentary flexibility procedures.

Some hybrid employers used the momentary flexibility procedures within the months when DHS’s focus was on whether or not the employer maintained completely distant operations. They weren’t eligible to depend on the flexibleness procedures at the moment and DHS may discover them out of compliance. Underneath the case-by-case evaluation, nonetheless, an employer with hybrid operations might want to argue that it correctly adopted the flexibleness procedures. Such an employer ought to doc the character of its largely distant operations through the pandemic, the rationale for the digital inspection (worker security, native lockdown orders, and so on), and the employer’s procedures throughout digital overview of the I-9 paperwork. The hybrid employer additionally ought to full the bodily doc inspection as quickly as fairly doable. 

The Future: I-9 Bodily Doc Inspections and New Authorities I-9 Inspections

DHS has not determined whether or not it’ll prolong the momentary procedures into the subsequent yr. The federal company is unlikely to announce its determination till late this yr. In late December, many employers shut their operations for a vacation break and won’t be obtainable to deal with additional I-9 compliance. If DHS doesn’t prolong the momentary procedures, employers may have solely three enterprise days in early January 2022 to bodily examine paperwork and replace the various Varieties I-9 that have been accomplished over a 21-month interval. Employers ought to plan how they may full the in-person doc inspections for therefore many Varieties I-9 and start that inspection course of quickly.

  • For a distant worker who will not be working onsite on a daily, constant, or predictable foundation however is sporadically coming to the workplace, the employer ought to prepare to fulfill with the worker to finish the bodily doc inspection.

  • For an worker who works remotely due to the pandemic and by no means visits the workplace, the employer ought to request a particular assembly, if doable, to conduct the bodily doc inspection.

On the in-person assembly, if an worker not has the unique paperwork offered for digital inspection, the employer should present the I-9 Checklist of Acceptable Paperwork and ask the worker for a qualifying doc or paperwork as associated to § 2 (verification) or § 3 (reverification), whichever is relevant. The employer then should full a brand new § 2 or § 3 and retain the brand new doc with the Varieties I-9 accomplished by digital doc inspection. Every time doable, employers ought to have the identical particular person full the distant and bodily inspections of paperwork and the certifications required in § 2 or § 3.

Immigration and Customs Enforcement (ICE) paused I-9 inspections for a time through the pandemic. That break is over. ICE is again on the investigation path. As a part of its renewed enforcement effort, ICE states that it’s going to examine the Varieties I-9 at employers of all sizes and throughout all industries within the coming months. ICE additional states that it is going to be notably aggressive when it finds employers with egregious I-9 deficiencies. Employers should put together for this new wave of inspections. Amongst different actions, employers ought to (1) full any remaining steps required by the momentary flexibility procedures and (2) conduct inside I-9 compliance audits earlier than ICE knocks on the door.

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