On September 14, 2020, U.S. Immigration and Customs Enforcement (ICE) announced an extension of its flexibility provisions related to Form I-9 compliance, which ICE granted earlier this year. The extended flexibility requirements are intended to address situations in which employers’ entire operations are being conducted remotely due to Covid-19 concerns. The Department of Homeland Security (DHS) will extend the flexibility policy for an additional 60 days. The new expiration date of ICE flexibility accommodations is November 19, 2020.
Previously on March 19, 2020, due to precautions being taken by employers and employees associated with COVID-19, DHS announced that it would exercise prosecutorial discretion related to physical presence requirements normally required for completion of Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act. Under normal rules, an employee must appear in person with original employment authorization and identify documents and an employer or an employer’s representative must review the original documents in person in the presence of the employee. This policy only applies to employers and workplaces that are operating remotely. According to ICE, if there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation.
DHS further announced that it will continue to monitor the ongoing national emergency and provide updated guidance as needed. Ignorance of changing policies is not an excuse for non-compliance with Form I-9 completion requirements. Under the new directive, ICE states that employers are required to monitor DHS and ICE websites for additional updates on when the flexibility extension will be terminated, and when the physical presence requirements for completion Forms I-9 will resume.
About the Author:
Elise S. Levasseur is a Member in Dickinson Wright’s Troy office where she practices in the area of immigration. She can be reached at 248-433-7520 or firstname.lastname@example.org and you can visit her bio here.