Form I-9 Review Flexibility Extended Through End of Year
Author: Robert S. Teachout, XpertHR Legal Editor
November 23, 2020
Due to continued precautions related to COVID-19, the US Department of Homeland Security (DHS) has announced that it is extending through December 31 the exemption allowing employers to remotely review the identity and employment authorization documents of employees who telework during the national coronavirus emergency.
DHS announced in March that it would temporarily relax its Form I-9, Employment Eligibility Verification document review requirements during the coronavirus (COVID-19) pandemic. The temporary exemption was originally set to expire May 19 but has been extended several times as the health crisis continues.
In its recent announcement, DHS reiterated that the policy exemption applies only to employers and workplaces that are operating remotely; if any employees are physically present at a work location, no exceptions will be allowed. If an employer is not eligible for the exemption, it may continue to designate authorized representatives to act on its behalf to conduct in-person document reviews.
All employees who have been onboarded virtually are required to undergo in-person verification once an employer's normal operations resume (even if earlier than December 31, 2020) or when the employee is physically present at the work location, whichever occurs earlier.
In August, DHS also announced that, due to production delays of the Form I-766 Employment Authorization Documents (EAD card) caused by the COVID-19 pandemic, Form I-797, Notice of Action would be temporarily allowed for use as a valid Form I-9 verification document of work authorization (a List C document). The EAD card, issued by the US Citizenship and Immigration Services (USCIS), temporarily authorizes noncitizens to work in the United States. The Form I-797 must be dated on or after December 1, 2019, through August 20, 2020, and may be accepted until December 1, 2020. By that date, employers must reverify employees who use the Form I-797 using a different List C document.
DHS stated it is monitoring the ongoing national emergency and will provide updated guidance as needed. The agency reminded employers that they are required to monitor the DHS and Immigration and Customs Enforcement (ICE) websites for additional updates about when the extensions will be terminated and normal operations will resume.