Replace: Apr. 25, 2022
The Division of Homeland Safety (DHS), U.S. Immigration and Customs Enforcement (ICE), in the present day introduced an extension of the Type I-9 flexibilities first introduced in March 2020 and up to date in March 2021. On February 18, 2022, President Biden issued a discover on the continuation of the state of the Nationwide Emergency regarding the COVID-19 pandemic (“COVID-19”). As a result of continued security precautions associated to COVID-19, DHS will prolong the up to date flexibilities till October 31, 2022.
On March 20, 2020, in response to public well being steering and precautions associated to COVID-19, DHS introduced that it might train prosecutorial discretion to defer the bodily presence necessities of the Employment Eligibility Verification (Type I-9) underneath Part 274A of the Immigration and Nationality Act (INA). This coverage solely utilized to employers and workplaces that had been working remotely. If there have been workers bodily current at a piece location, no exceptions to the in-person verification of id and employment eligibility documentation for Type I-9 had been applied at the moment.
For extra data, please see the March 2020 guidance.
On March 31, 2021, and efficient April 1, 2021, DHS offered the next replace – which can nonetheless be in impact by means of this extension – to its Type I-9 flexibilities:
The preliminary flexibility announcement issued on March 20, 2020 notes that DHS will consider sure COVID-19-related Type I-9 completion practices on a case-by-case foundation as they relate to the bodily inspection of Type I-9 documentation. Accordingly, as of April 1, 2021, the requirement that employers examine workers’ Type I-9 id and employment eligibility documentation in-person applies solely to these workers who bodily report back to work at an organization location on any common, constant, or predictable foundation.
If workers employed on or after April 1, 2021 work solely in a distant setting as a consequence of COVID-19 associated precautions, they’re briefly exempt from the bodily inspection necessities related to the Employment Eligibility Verification (Type I-9) underneath Part 274A of the INA till they undertake non-remote employment on an everyday, constant, or predictable foundation, or the extension of the flexibilities associated to such necessities is terminated, whichever is earlier.
Employers could also be unable to well timed examine and confirm, in-person, the Type I-9 supporting paperwork of worker(s) employed since March 20, 2020, as described above, in case-by-case conditions (comparable to instances through which affected workers are not employed by the employer). In such instances, employers might memorialize the explanation(s) for this incapability in a memorandum retained with every affected worker’s Type I-9. Any such cause(s) can be evaluated, on a case-by-case foundation, by DHS ICE within the occasion of a Type I-9 audit.
As famous in DHS ICE’s March 31, 2021 announcement, the Type I-9 flexibilities introduced in March 2020 don’t preclude employers from commencing, of their discretion, the in-person verification of id and employment eligibility documentation for workers who had been employed on or after March 20, 2020, and who offered such paperwork for distant inspection in reliance on the flexibilities first introduced in March 2020.
Employers ought to monitor the DHS and ICE web sites for extra updates concerning the standing of Type I-9 completion flexibilities.