DHS Clarifies Latest Update on Form I-9 Compliance Flexibility Requirements

In an email to stakeholders on Wednesday, May 19th, 2021, the U.S. Department of Homeland Security (DHS) provided clarification regarding Form I-9 compliance temporary flexibility requirements due to COVID-19. 

The latest announcement includes clarification in three main areas:

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.

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.

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.

The latest I-9 compliance flexibility accommodation is set to expire on May 31, 2021. There is still no word on whether it will extend these flexibilities beyond this date.