Today, Wednesday May 19, 2021, Department of Homeland Security’s U.S. Immigration and Citizenship Service announce clarification on its previous notice of March 31, 2021 providing another 60-day extension for remote Form I-9 inspection. The latest announcement includes clarification in three main areas:

 1.  An employer’s entire staff is no longer required to work virtually for the employer to use temporary flexibilities.

  • Before April 1, 2021, if there were employees physically present at a worksite location, DHS did not permit policy exceptions of the in-person Form I-9 document examination requirements.
  • DHS has clarified that employers do not need to have 100% percent of their staff working remotely to use the temporary flexibilities permitting remote inspection.

2.  Provides greater flexibility for employers.

  • Employees who were hired as of April 1, 2021 and working remotely are exempt from the in-person examination of their Form I-9 identity and employment eligibility documentation, even if some employees are working in-person at the employer’s worksite.
  • This flexibility ends once the employee undertakes non-remote employment on a regular, consistent, or predictable basis, or the extension of the remote inspection flexibilities related to such requirements is terminated, whichever is earlier

3. Encourages employers to begin to address any physical inspection backlog.

  • Some employers who used remote inspection for employees hired on or after March 20, 2020, have accumulated a backlog of Forms I-9 that require the physical inspection of identity and employment authorization documentation upon the affected employees’ return to in-person employment.
  • DHS’s March 31, 2021, guidance indicates that employers may in their discretion, begin the in-person examination of affected employees’ Form I-9 identity and employment eligibility documentation before such employees return to in-person employment.

___________________________

Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.