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”. The most recent exception was set to expire on August 31, 2021 and has been extended through December 31, 2021 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, if employees are subject to quarantine, or at-risk, DHS has indicated that they will review on a case-by-case basis. DHS has not yet defined what qualifies as a “work location”, nor provided any guidance for whether the exception would apply only to (Pre-COVID-19) worksites of an employer that are 100% remote. 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