Volume 1 | Issue 1

DHS EXPANDS FORM I-9 FLEXIBILITY RULE THROUGH AUGUST 31, 2021

The Department of Homeland Security has extended its Form I-9 flexibility rule through August 31, 2021. Under this rule, employees hired on or after March 20, 2020 that work exclusively in a remote setting due to COVID-19-related precautions are temporarily exempt from the physical inspection requirements associated with the Form I-9. However, employers must still inspect the Form I-9 Section 2 documents remotely (e.g., over video link, fax or e-mail, etc.) and obtain, inspect and retain copies of the documents within three business days for purposes of completing Section 2.

How is the Form I-9 completed under the flexibility rule?

Employers relying upon the flexibility rule should enter “COVID-19” as the reason for the physical inspection delay in the Form I-9 Section 2 Additional Information field. Before or at the time normal business operations resume, employers should perform in-person physical inspections of the documents within three business days of the employee’s return. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3 on the Form I-9, as appropriate.

When must employers complete in-person physical inspection of the Section 2 documents?

The requirement that employers perform an in-person inspection of employees’ Form I-9 identity and employment eligibility documentation applies only to those employees who physically report to work at a company location on any regular, consistent or predictable basis.
Once an employer’s normal operations resume, all employees who were onboarded under the flexibility rule must report to their employer within three business days for in-person verification of appropriate identity and employment authorization documents.

Can I start examining documents before employees return to the office?

The flexibilities discussed here do not preclude employers from commencing, at their discretion, the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.