US Immigration News

I-9 Temporary Flexibility Procedures Extended: Deferring Physical Inspection

2.75 minute read
"The Department of Homeland Security (DHS) introduced temporary flexibility procedures to defer physical inspection of documents for Form I-9, Employment Eligibility Verification, during the pandemic. These flexibility procedures have been extended many times since."
Written by My Visa Source Team
Published on:  Nov 6, 2021
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The Department of Homeland Security (DHS) introduced temporary flexibility procedures to defer physical inspection of documents for Form I-9, Employment Eligibility Verification, during the pandemic. These flexibility procedures have been extended many times since. Recently, the DHS announced that these procedures will remain in effect until December 31, 2021. In addition to this, the DHS also expanded the circumstances under which the employers can rely on these procedures to complete Form I-9. 

What Is the I-9 Temporary Flexibility Procedure?

Since the pandemic forced US employers to operate remotely, the DHS first introduced these measures in March 2020 to allow them to complete Form I-9 without physical inspection. Before these procedures, to complete Form I-9, the employer was required to meet the new employee in person for verification. During this meeting, the employer was required to inspect the documents presented by the employee to confirm their identity and employment authorization. These documents must be inspected within 3 business days or in case of verification, before the expiration date of the initial employment authorization. 

Due to the pandemic, employers were unable to meet in person to inspect these documents. Therefore the flexibility procedures introduced by the DHS allow qualifying employers to conduct a virtual review of the documents or temporarily defer the inspection of these documents. US employers can add “Covid-19: Remote inspection completed on mm/dd/yyyy” under the “Additional Information” field on the Form I-9. 

US employers will be required to conduct a physical document inspection within 3 business days if:

  • Their business returns to normal operations
  • The DHS terminates the temporary flexibility procedures

US employers can add “Covid-19: Documents physically examined on mm/dd/yyyy” in the Additional Information section on the Form I-9. 

What Are the Recent Extensions and Updates to the I-9 Temporary Flexibility Procedure?

US employers hiring foreign workers on or after April 1, 2021, may use the temporary flexibility procedures if the new employee will be working remotely due to Covid-19. US employers will be required to conduct a physical inspection of the documents within 3 business days if:

  • The employee is coming to the office on a regular, consistent, and predictable basis
  • The DHS terminates the temporary flexibility procedures

The DHS will be taking a case-by-case approach to evaluating employers’ compliance with the Form I-9 during the pandemic. The DHS may consider the employer’s inability to conduct a physical inspection of the documents due to pandemic-related restraints as compliance. Also, the documented use of temporary flexibility procedures by the employer will help demonstrate your compliance with the I-9. However, if hybrid employers were relying on temporary flexibility procedures before the DHS introduced the extensions, the DHS could find them in noncompliance. 

What Is the Future of Form I-9 Compliance?

Currently, it is undecided whether these flexibility procedures will be extended into next year. If it is not decided before late December, many employers will find little time to ensure compliance in early January 2022. Therefore, US employers should plan on how they will complete in-person document inspections before these procedures are terminated. 

The Immigration and Customs Enforcement (ICE) had to pause I-9 inspections during the pandemic. However, they have opened inspections again and as a part of their enforcement efforts, they plan on inspecting Form I-9 of employers of all sizes and across all industries.

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