The Department of Homeland Security (DHS) has again extended its temporary relaxation of the standards for physically inspecting a new worker’s employment eligibility documents when completing the Form I-9. This is the twelfth extension of the relaxed standard, which will now expire on April 30, 2022. As we originally reported, DHS relaxed the requirement for employers operating remotely and unable to physically inspect documents during the COVID-19 (coronavirus) national emergency. The latest announcement continues the two exceptions to in-person inspection: one for individuals working exclusively remotely due to COVID-19 precautions who were hired on or after April 1, 2021, and another for entire workplace establishments. The individual exception (originally announced here) for employees hired on or after April 1, 2021, applies “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.” The establishment exception applies only if the entire workplace is working remotely; if anyone is physically present in the workplace, then the establishment exception doesn't apply, and you must physically inspect Form I-9 documents as usual.
DHS also provided guidance on what employers should do if they’re unable to conduct an in-person inspection of Form I-9 supporting documents before separation of employment for employees who were hired since March 20, 2020. DHS recommends memorializing any reason for the inability to inspect the documents in person and attach it to the Form I-9. DHS will evaluate the explanation on a case-by-case basis in the event of a Form I-9 audit.
Tips: The temporary relaxation doesn’t change your basic duty to complete the Form I-9 process within the usual time frame (generally no later than the third business day after a new hire begins working). However, if one of the exceptions to the physical inspection requirements applies, any employees responsible for reviewing I-9 documents may visually inspect documents that verify identity and employment eligibility via video link, fax, email, or other digital means. For new hires, write “COVID-19” in the “Additional Information” box in Section 2 on the form; for current employees whose documentation needs to be reverified, write “COVID-19” in the space along the side of Section 3 of the form. Within three business days of resuming in-person work, you'll need to physically inspect the actual documents and update the Form I-9 accordingly.