On October 11, 2022, DHS extended its COVID-19 Form I-9 flexibilities until July 31, 2023, due to "continued safety precautions related to COVID-19."
The message FINAL REMINDER: DHS Ended COVID-19 Temporary Policy for Expired List B Identity Documents - 07/22/2022 on I-9 Central's Temporary Policies Related to COVID-19 page reminds the public that, "DHS adopted the temporary policy in response to the difficulties many individuals experienced with renewing documents during the COVID-19 pandemic. Now that document-issuing authorities have reopened and/or provided alternatives to in-person renewals, DHS ended this flexibility on May 1, 2022 and employers must only accept unexpired List B documents... If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers are required to update their Forms I-9 by July 31, 2022." The message also includes a table explaining update requirements.
The Immigration and Nationality Act requires employers to verify the employment eligibility of all employees before employment begins or continues. See INA 274A [8 USC 1324a]. This employment verification is implemented through Form I-9, Employment Eligibility Verification Form, and through DHS regulations at 8 CFR Part 274a.
Under standard rules, employers must physically examine each document submitted by the employee to establish identity and work authorization.
On March 20, 2020, DHS implemented the following flexibilities due to the COVID-19 pandemic:
"Due to precautions being implemented by employers and employees related to physical proximity associated with COVID-19, the Department of Homeland Security (DHS) announced today that it will exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA). Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate. These provisions may be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first."
On March 31, 2021, DHS updated its guidance to also provide:
"...as of April 1, 2021, the requirement that employers inspect employees' Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis."
"If employees hired on or after April 1, 2021, work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the INA 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 flexibilities discussed here do not preclude employers from commencing, in their discretion, the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020."
Employers must keep track of employees whose documents were inspected remotely under these flexibilities, and must re‑examine those documents in-person after the end of the DHS flexibility policy or once the employee returns to "non-remote employment on a regular, consistent, or predictable basis," whichever occurs first.
These policies are now in effect until July 31, 2023.