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Pandemic-Driven Form I-9 Documentation Rules Extended to May 31, 2021

Employers must verify identity and work authorization for U.S.-based citizens and noncitizens using “Form I-9 Employment Eligibility Verification” (I-9 Form). Potential consequences for   noncompliance can include civil fines of up to $ 23,331 per occurrence as well as criminal prosecution and imprisonment.

Last year, Department of Homeland Security (DHS) announced that employers and workplaces operating remotely due to COVID-19 could perform I-9 document inspections remotely over video link, fax or email so long as they obtained, inspected and retained copies of the documents within three business days of hire and entered “COVID-19” as the reason for the physical inspection delay in the Form’s additional information field.

The DHS recently announced extension of this flexibility from April 1 to May 31, 2021.

Thus, employees hired on or after April 1 and who work exclusively in a remote setting due to COVID-19 are temporarily exempt from Form I-9’s physical document inspection requirements until they undertake non-remote employment “on a regular, consistent, or predictable basis,” or until DHS terminates this policy.

Employers who avail themselves of this option “must provide written documentation of their remote onboarding and telework policy for each employee.”

Once normal operations resume, all employees using remote verification must report to their employer within three business days for an in-person document verification, at which time the employer should add “documents physically examined” with the date of in-person inspection to the Form’s additional information field.

Affected employers must monitor the DHS and U.S. Immigration and Customs Enforcement (ICE) websites for further updates.

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For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
April 15, 2021