I-9 flexible measures extended until April 30

U.S. Immigration and Customs Enforcement (ICE) announced today that it would extend Form I-9 flexible procedures for employers.

Key Points:

• ICE extended the temporary measures until April 30, 2022. The guidance had been scheduled to expire Dec. 31.
• Since March 2020, the guidance has allowed employers that are operating remotely due to COVID-19 to conduct verification of employee documents virtually, e.g., by using fax, email or video link, for the purpose of Form I-9 employment eligibility verification procedures. Employers that follow the virtual procedures must comply with certain guidelines when “normal operations” resume, including conducting physical inspection of documents that were viewed remotely within three business days.
• The agency will continue to apply the guidance previously issued for employees hired on or after April 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions. The guidance exempts these employees from physical inspection requirements until they undertake non-remote employment on a “regular, consistent, or predictable basis” or until the extension of I-9 flexibilities ends, whichever is earlier.
• Employers should consult the original March 2020 ICE guidance for eligibility requirements and information on how to obtain, remotely inspect and retain copies of identity and employment eligibility documents. U.S. Citizenship and Immigration Services (USCIS) has also provided guidance on how to properly complete and annotate the Form I-9.
• Employers should monitor the Department of Homeland Security (DHS) and ICE websites for additional updates regarding when the extensions will be terminated and normal operations will resume.

Additional Information: ICE introduced the temporary measures in March 2020 and has extended them numerous times since, most recently in August.

USCIS is currently collecting input from the public on possible “alternative options to physical document examination” in the I-9 process. In the recently published regulatory agenda, DHS indicated that it plans to publish a notice of proposed rulemaking next year on “alternative document examination procedures under certain circumstances or with respect to certain employers.” BAL will provide updates as information becomes available.

This alert has been provided by the BAL Global Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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