U.S. Immigration and Customs Enforcement (ICE) announced this week that it would extend temporary Form I-9 flexibilities that were first implemented at the beginning of the COVID-19 pandemic and subsequently modified and extended in March 2021.

Key Points:

  • ICE extended the temporary measures through July 31, 2023. The guidance had been scheduled to expire Oct. 31.
  • The guidance temporarily allows employers operating fully remotely due to COVID-19 precautions 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 inspections 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 temporarily 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. It is important to note that this guidance does not apply to employees who are working remotely for reasons not related to COVID-19.
  • Employers should consult the original March 2020 ICE guidance and the updated policy from March 2021, along with this week’s announcement 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 information about the temporary flexibilities.

Additional Information: ICE introduced the temporary measures in March 2020 and has extended them numerous times since, most recently in April. DHS proposed to formalize its authority to allow optional alternatives to physical examination for certain employers in August. The agency is currently accepting public feedback on the proposal through Oct. 17.

USCIS has confirmed that employers should continue using the Form I‑9, Employment Eligibility Verification, after its expiration date of Oct. 31, 2022, until further notice. DHS will publish a Federal Register notice to announce the new version of the Form I‑9 once it becomes available. BAL will provide updates as new information becomes available.

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

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