U.S. Immigration and Customs Enforcement (ICE) announced today that it would extend temporary Form I-9 flexibilities that were first implemented at the beginning of the COVID-19 pandemic.

Key Points:

  • ICE extended the temporary measures until Oct. 31, 2022. The guidance had been scheduled to expire April 30.
  • The guidance temporarily allows employers 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 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.
  • Employers should consult the original March 2020 ICE guidance along with today’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 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 December. DHS has indicated it is working toward proposing a permanent optional alternative to physical examination for certain employers in the coming months. The agency is currently accepting comments on a revised Form I-9, in anticipation of the current form’s Oct. 31 expiration date. 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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