The Department of Homeland Security (DHS) has recently extended temporary flexibility procedures for Form I-9 that allow employers to defer the physical inspection of documents. The DHS has granted several short extensions previously, starting at the beginning of the pandemic. This current extension will last until December 31st, 2021.  The recent extension also provides more instances in which the employer is allowed to use the flexible procedures for completing Form I-9.

The Temporary Flexibility Procedures

The Temporary Flexibility Procedures were established to allow employers to complete Form I-9 while conducting business remotely due to COVID-19. The normal procedure for filling out FORM I-9  involved meeting with the employee and inspecting the documents in person to establish identity and give employment authorization.  The employer needed to have this meeting within three business days of the new employee being hired or of the expiration of a current employee’s authorization.  However, employers with remote operations are unable to do this.

But under the Temporary Flexibility Procedures, employers can review I-9 documents virtually and defer the requirement to physically review the documents.  These flexible procedures only apply to situations where the remote work is due to COVID-19.  In other situations, the normal rule applies. Also, employers are required to confirm the nature of their inspection when they choose to virtually inspect the documents.

When the physical examination of the documents eventually occurs, a person inspecting the documents must put in the Additional Information field their initials and the date of the inspection. If the person conducting the physical inspection of the documents is different than the person who performed the virtual inspection, they need to put their full name and title. If this is difficult to do due to using Electronic I-9 Software, a paper I-9  form may be used for this additional information.

Initially, these flexibility procedures only applied to employers with fully remote operations. Any employers using hybrid operations were not eligible to use the Temporary Flexibility Procedures. However, under the updated rules, an employer who hires a new employee on or after April 1st, 2021  that will be working remotely due to COVID-19 may use the flexibility procedures on these employees. The DHS is now concerned more about work location rather than whether an employer has fully remote operations.  

If the Temporary Flexibility Procedures are terminated, or the employer ends remote work, the employer must physically inspect the documents within three business days.  As far as government inspections go, the DHS will evaluate an employer’s compliance with I-9 procedures during the pandemic on a case-by-case basis.