United States: ICE Extends Interim COVID-19 Flexibility for Form I-9 Compliance Through April 30, 2022

The interim I-9 policy allows employers to use remote Form I-9 procedures for employees who are (1) hired on or after April 1, 2021; and (2) are working fully remotely as a COVID-19 precaution, even if the employer has employees working non-remotely at the employer’s premises. However, employers are required to use standard I-9 procedures for new hires who are working non-remotely on a “regular, consistent, or predictable basis.”

If the I-9 process for an eligible new hire is completed without physical document inspection on or after April 1, 2021, the employer will be required to inspect the employee’s I-9 documentation in person upon the earlier of (1) three days after the employee begins working non-remotely on a regular, consistent, or predictable basis; or (2) within three days after the COVID-19 emergency has ended or ICE has terminated the remote policy.

Employers can begin physical inspection of affected employees’ documents earlier than this timeframe in the employer’s discretion. Employers must ensure that they implement such an inspection practice in a consistent and non-discriminatory manner across the workforce. 

Employers may continue to follow standard Form I-9 procedures, including the use of third-party agents to complete verification on the employer’s behalf. Employers who are weighing whether to adopt or continue the flexible I-9 procedures should consider the following:

• The COVID-19 flexible I-9 accommodation can be cumbersome. Employers may prefer to use or resume using standard I-9 procedures for their new hires and reverifications, which include using offsite third-party agents to inspect employee documents and complete Form I-9 on the employer’s behalf.
• Employers who use the interim I-9 accommodation will be required to physically inspect the documents of affected employees no later than three days after normal operations resume. This means that employers may have a very limited window in which to inspect the documents of large numbers of employees.
• If your organization used or uses remote I-9 procedures, consider beginning physical inspection of the documents of affected employees earlier than the deadlines prescribed by ICE. If your organization adopts this practice, it must be implemented consistently and in a non-discriminatory manner.
• Though the interim I-9 policy and its expansion give employers some welcome flexibility during the COVID-19 emergency, employers must be aware that it is not clear how ICE will enforce the policy. Among other issues, the agency has not defined “fully remote work” or “regular, consistent, or predictable” non-remote work. Therefore, employers using these procedures must weigh the risks against the administrative convenience and the possibility of fines and other penalties in the event of an I-9 inspection.

On March 20, 2020, ICE announced that it would evaluate certain COVID-19-related Form I-9 completion practices on a case-by-case basis as they relate to physical inspection. In today’s announcement, ICE acknowledges that in case-by-case situations (such as a case where an affected employee is no longer employed by the employer), employers may have been unable to timely inspect and verify in-person the Form I-9 supporting documents of employee(s) hired since March 20, 2020, as described above. In such cases, ICE advises that employers may memorialize the reasons for this inability in a memorandum, which should be retained with each affected employee’s Form I-9. These reasons will be evaluated, on a case-by-case basis, by ICE in the event of a Form I-9 audit.

In its recently released regulatory agenda, ICE includes plans for a proposed regulation that would provide alternatives for the in-person inspection of identity and employment authorization documents in the Form I-9 employment eligibility verification process. The specific alternatives that might be included in a new regulation are not yet known, but they could include forms of remote inspection similar to those that have been temporarily in place due to the COVID-19 epidemic. The proposed regulation is slated to be published in June 2022, though agencies routinely bypass their projected publication dates.

Fragomen is monitoring the progress of the proposed regulation and will provide updates as appropriate.