On March 19, 2020, DHS
announced a new policy which deferred the requirement for employers to review original documents presented by employees to prove their identity and authorization to work in the U.S. to satisfy the Form I-9 in the employee’s physical presence. This policy has permitted qualifying employers to review documents virtually or accept copies of documents. It has not, however, provided an extension of the requirements to complete the review of documents (virtually or physically) by the 3rd business day following date the employee begins work for pay. The requirement to review the original documents in the employee’s physical presence was deferred until 3 days after “normal operations resume”. This exception has been extended through
October 31, 2022 as the national emergency continues.
This policy was intended to apply to employers with employees taking physical proximity precautions due to COVID-19. If there are employees “physically present at a work location”, the exception does not apply. However, as response plans evolved, DHS determined that, as of April 1, 2021, the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in the emloyee’s physcial presence “applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis”.
DHS further clarified that “If employees hired on or after April 1, 2021 work exclusively in a remote setting due to COVID-19 related precautions, they are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the INA until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.”
USCIS has also provided examples of how employers should notate the application of this exception to the Form I-9s as well as the physical inspection of the original documents in the employee’s physcial presence which must occur witthin 3 days following an employer’s return to “normal operations”.
As vaccines increase and cases of COVID-19 decrease, employers may be loosening restrictions previously imposed under their own COVID-19 response plans. As employers begin to allow and/or require certain employees/positions to return to their previous work location, there may be confusion with regard to how the gradual return vs. complete return to “normal operations”, (for employers who previously qualified for this exception), will impact their Form I-9 compliance process. Employers are encouraged to reach out to their Maggio Kattar attorney for guidance
