DHS Extends Form I-9 Requirement Flexibility to April 30, 2022

Date: January 07, 2022

The Department of Homeland Security (DHS) and the United States Immigration and Customs Enforcement (ICE) extended the March 2020 flexibilities in Form I-9 (Employment Eligibility Verification) compliance due to ongoing COVID-19-related precautions. Absent these flexibilities, employers must complete an in-person, physical verification of an employee’s identity and employment eligibility. Prior to this extension, the guidance was set to expire on December 31, 2021. Form I-9 Flexibility is permitted in the following circumstances:

  • The extension applies the previously issued guidance to employees hired on or after April 1, 2021 who work exclusively in a remote setting due to COVID-19-related precautions. As of April 1, 2021, these flexibilities also apply to employees working remotely, even if other employees are physically present at the workplace.
  • Employers are able to verify such an employee’s identity and employment eligibility remotely, such as over video or email.
  • These employees are temporarily exempt from Form I-9’s physical inspection requirements until they work non-remotely on a regular, consistent, or predictable basis, or until DHS terminates these flexibilities.

Employers can find the temporary policies related to COVID-19 on the United States Citizenship and Immigration Services (USCIS) website, including an FAQ. When these flexibilities end, employees who were exempt from Form I-9’s physical inspection requirements must report to their employer within three business days for an in-person, physical verification of identity and employment eligibility. Employers should continue to monitor the DHS and ICE announcements to determine when these flexibilities end and prepare for an expiration of such flexibilities.

Businesses with additional questions can reach out to the NFIB Small Business Legal Center at [email protected].

Updated January 6, 2022

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