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ICE Extends Interim COVID-19 Protections for Form I-9 Compliance Through May 31, Expands Accommodations for New Hires On or After April 1

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U.S. Immigration and Customs Enforcement (ICE) has declared that it is extending until 31st May 2021, its casual relaxed enforcement of the normal requirement to physically inspect the original documents presented by new hires during the Form I-9 process and consequently permit eligible employers to continue to implement remote I-9 verification in specific circumstances during the COVID-19 emergency. Also, ICE has introduced a variety of the remote I-9 policy for employees who are recruited on or after 1st April 2021, and are working distantly because of COVID-related precautions.

Employers who are eligible for and elect to utilize the remote I-9 policy will actually want to inspect Section 2 documents remotely. By video, fax, or email, and must retain copies of the documents. The ordinary timelines for I-9 completion remain in effect. Section 1 of the I-9 should be finished by the employee’s beginning date and Section 2 should be finished within three business days of the beginning date. Employers taking advantage of these relaxed procedures. Must provide written documentation of their remote onboarding and telework policy to each employee.

Remote Form I-9 policies for employees hired on or after April 1, 2021

Employers may utilize remote Form I-9 methods for employees who are (1) recruited on or after 1st April 2021; and (2) are working completely remotely as a COVID-19 safety measure, even if the employer has employees working non-remotely at the employer’s premises. For these new recruits, employers are no longer required to have all employees working remotely in order to use the remote I-9 accommodation. A departure from the agency’s pre-April 1, 2021 policy. However, the employer is needed to use standard I-9 procedures for new hires who are working non-remotely on a “regular, consistent, or predictable basis.”

If an eligible new hire completes the I-9 process remotely on or after 1st April 2021. The employer isn’t needed to inspect the employee’s I-9 documentation in person until the earlier of (1) three days after the employee begins working non-remotely on a regular, consistent, or predictable basis; or (2) within three days after the COVID-19 emergency has finished or ICE has terminated the remote policy. ICE reminds employers that they can start physical inspection of affected employees’ documents earlier than this timeframe at the employer’s discretion. Employers should ensure that they execute such an inspection practice in a consistent and non-discriminatory manner across the workforce.

The pre-April 1 interim policy and its limits

For employees onboarded between 20th March 2020, and March 31, 2021. Employers were allowed to utilize the interim I-9 accommodations for employees working remotely because of COVID-19. Yet just if the working environment was operating entirely remotely, with no employees physically reporting to the work location. Once normal operations resume, employers who adopted this practice must be prepared to inspect the documents of affected employees within three days. As verified above, employers can start physical inspection of documents of affected employees earlier than this timeframe at the employer’s discretion. Such an inspection practice must be implemented in a consistent and non-discriminatory manner across the workforce.

Considerations For Employers

Employers may continue to follow standard Form I-9 systems. Including the use of third-party agents to finish confirmation for the verification on the employer’s behalf. Employers who are gauging whether to embrace or proceed with remote I-9 procedures should consider the following:

  • The remote I-9 accommodation can be cumbersome. Employers may like to use or resume using standard I-9 procedures for their new hires and reverifications. This includes utilizing offsite third-party agents to inspect employee documents and complete Form I-9 on the employer’s behalf.
  • Employers who utilize the remote I-9 accommodation will be needed to physically inspect the documents of affected employees. No later than three days after normal operations resume. This implies employers may have a very limited window in which to inspect the documents of large numbers of employees.

[H/L/J Nonimmigrant Proclamation Expired, But Travel Challenges Will Remain]

  • If your organization used or uses remote I-9 procedures. Consider starting a physical inspection of the documents of affected employees sooner than the deadlines prescribed by ICE. If your association adopts this practice, it should be executed consistently and in a non-discriminatory manner.
  • Though the remote I-9 policy and its extension give employers some welcome flexibility during the COVID-19 emergency. Employers should know that it isn’t clear how ICE will enforce the remote policy. Among different issues, the organization has not defined “fully remote work” or “regular, consistent, or predictable” non-remote work. Therefore, employers using remote I-9 procedures must weigh the risks. Against administrative convenience and the possibility of fines and other penalties in the event of an I-9 inspection.

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