In March 2020, the U.S. Department of Homeland Security and U.S. Immigration and Customs Enforcement relaxed some of the I-9 compliance requirements because of the COVID-19 pandemic. One of these “flexibilities” ended this past  Saturday -- the temporary policy allowing employees to present expired List B identity documents.

However, the DHS/ICE announced last week that other “flexibilities” -- most notably, allowing employees to present required identity and employment authorization documents virtually -- will continue through the end of October. The extension, although welcome to many employers, was surprising because many other COVID-related restrictions have been lifted. And at least one burning question remains.

Remote presentation guidance

The “remote presentation” policy initially applied only to those whose workplaces were exclusively remote because of COVID. However, in April 2021, the policy was expanded to all new hires who were working exclusively and alone in a remote setting, even if their co-workers were not.

In a remote presentation situation, the employer must inspect the Section 2 documents via video link, fax, email, or other similar method, within three business days of the employee’s first day of employment. The employer should then perform the actual in-person physical inspection as soon as possible -- or within three business days of resumption of normal operations -- noting “COVID-19” as the reason for the delay.

(In the case of non-remote workers, the physical inspection must be performed within three business days of the employee’s first day of employment.)

Big question for employers

According to guidance issued by the DHS/ICE in March 2021, remote presentation of documents appears to be available only if the employer or employee is “taking physical proximity precautions due to COVID-19.” In explaining the reason for the delay in physical inspection of the documents, employers are directed to enter “COVID-19.” In other words, it does not appear that remote presentation is allowed when an employee chooses to work remotely for his or her own convenience, or for the convenience or business reasons of the employer.

If a company chooses to operate remotely both as a COVID precaution and for other reasons, is it eligible to take advantage of the I-9 flexibility? The DHS/ICE guidance seems to indicate “no.” However, employers should consult with their immigration counsel about their specific circumstances.

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