Early Holiday Present From ICE: I-9 Flexibilities Extended to April 30, 2022

Seyfarth Synopsis: ICE announces an extension to I-9 compliance flexibility rules relating to Form I-9 compliance that was initially granted in March of 2020 at the onset of COVID-19.  It continues to allow for the “in-person” exemption (of identity and work authorization document review) benefiting certain employees, and offering flexibility for companies that are phasing back in employees, as doing so will no longer trigger the in-person requirement for all new hires.  While the government is also warming to the idea of a permanent virtual option, employers should work under the assumption that anyone initially verified using the virtual flexibility will be required to review and record documents in-person as employees return to the workplace. 

As the clock struck  midnight, U.S. Immigration and Customs Enforcement (ICE) posted a 120-day extension for the flexibilities in rules related to Form I-9 compliance, initially granted in March 2020.  These flexibilities are now extended until April 30, 2022.  For the first time, the announcement was issued several weeks before the current expiration and comes on the heels of a letter sent by SHRM, the Society for Human Resource Management, AILA, The American Immigration Lawyers Association, the US Chamber, and Compete America urging Secretary Mayorkas to extend the flexibilities and announce by mid-December.  Advocacy works. 

Staying the Course.

The announcement affirms the last extension which expanded the scope of the in-person exemption benefit to certain employees hired on or after April 1, 2021, who are working remotely due to COVID-19 reasons.  Specifically, the guidance states:

“This extension will continue to apply the guidance previously issued for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) 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.”

The original requirement that companies needed to be 100% remote to allow for the use of virtual inspection of identity and work eligibility documents was changed for hires on or after April 1, 2021.

Unfortunately, that guidance is forward-facing and not retroactive.  However, as stated in an earlier blog:

The April 1 date implies that despite employers now being able to verify any remote new hires’ documentation virtually, if employers were not previously operating fully remote and were performing virtual inspections for their remote workers (or in-person workers), they may find themselves in a pickle. In these cases, employers should carefully memorialize their situation, the reasoning for using the flexibility, and, if audited, request that ICE evaluate their situation “on a case-by-case basis” referenced in the original 2020 announcement.

We remain optimistic that the government will show leniency for early misunderstandings and misapplications of the original policy.

In the interim, companies should plan accordingly and consider updating their Forms I-9s in-person, wherever possible, and safe.  As suggested, where appropriate, the authorized representative method serves as a significant time-saver when correctly crafted and implemented carefully.  Review ICE Warms to the Cold Realities of COVID-19: Latest I-9 Virtual Flexibility Guidance Extended to May 31, 2021 for guidance on what employers can be doing now.

The Omicron variant is spreading like wildfire heading into the holiday season, and employers continue to struggle with implementing return to work policies, hybrid offerings, and onboarding changes.  Unfortunately, ICE did not ease any burdens in this respect; the Dec 15^th guidance includes nothing about what happens when the virtual policy ends.  Organizations, associations, and individual employers alike have urged ICE to outline the wind-down requirements, provide a reasonable amount of time to inspect documents in-person, update expired List B documents (where required), and otherwise, ensure that all original Forms I-9 are accounted for.  The government has also been asked to consider abandoning the second touch required where identity was verified via video and certain other factors are met.  Similarly, requests have been made to reconsider the requirement to update expired List B documents. Only time will tell what the outcomes will be. 

A Warmer Future in Store.

In late October, the Department of Homeland Security (DHS) requested input from the public (RFPI) regarding the virtual completion of Form I-9s.  DHS is seeking detailed information from employers regarding the impacts of remote document examination including the “potential costs and benefits of allowing for future remote document examination flexibilities”.  The RFPI also seeks input on Form I-9 modernization generally, including comments on the current List of Acceptable Documents (LOAD), and challenges with E-Verify, in the context of remote document examination. This is an excellent opportunity for companies to discuss the burdens created by the increased complexity of the US Citizenship and Immigration Service’s (USCIS) guidance surrounding accepting identity and work authorization documents not specifically listed on the LOAD, but still allowable. Comments are due on December 27, and all employers, large and small, are urged to share their experiences and comment directly or through an organization.

On December 7^th the Fall Regulatory Agenda was released and DHS has targeted next June 2022 for the release of a proposed rule on remote I-9 inspection in an attempt to reduce burdens on employers and employees alike.  The announcement stated, “DHS plans to propose to revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.”  This follows USCIS’ ongoing modernization efforts with work focused on improvements to the E-Verify system, including an employee centric TNC process that shifts the responsibility from employers.  2022 promises to be an exciting year for employment eligibility matters. 

For assistance with responding to the DHS RFPI or for questions regarding I-9 compliance, worksite enforcement audits, E-Verify compliance, Department of Labor immigration related wage and hour investigations, general H-1B compliance, and DOJ-IER anti-discrimination matters, please contact the Seyfarth Immigration Compliance and Enforcement group, or the author, Dawn Lurie, directly at dlurie@seyfarth.com.