I-9 Update: DHS Again Extends Virtual Document Review – With Limitations – But Response Time to NOIs Not Extended

In March 2020 the Department of Homeland Security, Immigration and Customs Enforcement (ICE) announced that they would temporarily defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA) for employers who have transitioned to a telework-only arrangement for their workforce for a period of 60 days. DHS extended this flexibility policy in May 2020 for an additional 30 days, in June for an additional 30 days and has announced an additional 30-day extension on July 18, 2020. The expiration for the compliance flexibility if August 19, 2020.

As we previously noted in our March alert, only employers who have implemented remote work for all of their staff will be able to avail themselves of this exception for an additional 30-day period. DHS has reiterated in its announcement that this “physical review” exception applies to employers “operating 100% remotely in light of COVID-19” and will not apply for employers for whom there are any employees physically present at a work location.

DHS also announced that after July 19th no additional extensions will be granted to employers who were served Notices of Inspection during March 2020.