I-9 flexibility guidelines extended again: What you need to know

There’s good news for Payroll and HR if you’re still hiring employees remotely. The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have extended Form I-9 flexibility guidelines until Oct. 31, 2022.

And there’s a chance this flexibility could become permanent down the line.

I-9 flexibility details

Because of the pandemic’s limits on in-person interactions, DHS and ICE started allowing remote inspection of I-9 documentation for new hires back in March 2020.

This flexibility means that any employer that’s still primarily remote due to COVID doesn’t have to review new employees’ Form I-9 documents in their physical presence.

Employers must still inspect the employee’s documents within three business days to complete Section 2 of the I-9. But they can do so over fax, video or email.

Once physical operations resume, any employees who were onboarded remotely should report to their employer within three business days with their I-9 documents. That way, Payroll or HR can review them in person.

After inspecting the employee’s documentation, employers should add “Documents physically examined” along with the date of inspection to the additional information field in Section 2 of Form I-9. Employers should also note “COVID-19” in this field as the reason for the in-person inspection delay.

As additional flexibility, effective for any employees hired on or after April 1, 2021, businesses only need to personally examine Form I-9 documents for those who will physically report to work at a company location on a regular, consistent or predictable basis.

If any employees are exclusively teleworking due to COVID-19, they’re exempt until I-9 flexibility is terminated or until they begin physically reporting to work on a consistent, predictable or regular basis.

Chance for permanent remote inspection

While these I-9 flexibility provisions have been helpful to employers during COVID, many businesses would likely appreciate them being permanent. This is especially true since remote hiring and telework won’t be going away anytime soon.

DHS is taking steps to make that happen. Back in October 2021, the agency published a request for input on the Federal Register. DHS asked employers, employees and other stakeholders to weigh in on the current document examination process for the I-9.

Specifically, DHS wanted input on the benefits and drawbacks of allowing more flexibilities for remote document examination. The agency’s exploring offering employers additional alternatives to physical inspection of documents that are equally or more secure to the current process. This would include various types of remote inspection.

To that end, the agency encouraged employers and employees to weigh in on their experiences with I-9 flexibility during COVID.

DHS plans to use this feedback to create additional guidelines for examining documents remotely that could become permanent. We’ll keep you posted.