Employers are reportedly urging the Biden Administration to delay the current August 30 deadline for in person re-inspections of I-9 documents that were submitted virtually during the COVID-19 pandemic.

The employers argue that the delay is justified because final regulations are expected in August that might make virtual verification and other alternative options permanent, according to a recent article in Bloomberg Law (paid subscription required to access).

The U.S. Department of Homeland Security announced in May that the temporary flexibilities for Form I-9, which among other things allowed for virtual inspections, would end on July 31. Further, by August 30, employers must re-inspect in person the relevant I-9 documents for any employee whose documents were inspected remotely while the flexibilities were in place.

With a few iterations, employers have been allowed to conduct virtual inspections related to Section 2 of the I-9 form since March 2020. Section 2 consists of the review of an employee’s documents providing proof of identity and employment authorization, which must be completed within three business days of the employee’s first day of employment.

The “remote presentation” policy initially applied only to employees of employers whose workplaces were exclusively remote because of COVID. However, in April 2021, the policy was expanded to cover employees who were working exclusively and alone in remote settings because of COVID, even if their co-workers were not.

In a remote presentation situation, the employer must inspect the Section 2 documents of a new hire via video link, fax, email, or other similar method.

In addition to the desire to avoid penalties for I-9 violations, the Bloomberg article said that employers with many geographically dispersed employees have expressed concerns about their ability to get the re-inspections completed by the August 30 deadline. Moreover, according to the Society for Human Resources Management, it “makes little sense” for employers to undertake in-person inspections if the final regulations will authorize virtual inspections permanently.

In our opinion, it does make sense for DHS to extend the August 30 deadline. The current situation for employers is unacceptable. They may expend the time and effort of conducting in-person inspections only to learn in August that the final regulations allow virtual inspections permanently. Or they may “stand down” and not perform in-person inspections only to learn after it is too late that in-person inspections will indeed be required. The DHS should promptly issue a further extension of the in-person inspection deadline to avoid putting employers in this dilemma.

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