DHS, ICE Extend Nonessential Travel Restrictions, I-9 Flexibility

June 23, 2020

The US Department of Homeland Security and US Customs and Immigration Enforcement have announced extensions of previously implemented measures and flexibilities relating to coronavirus (COVID-19), specifically nonessential travel restrictions from Canada and Mexico to the United States and extended compliance flexibility for Form I-9.

Extension of Nonessential Travel Restrictions for US Admissions from Canada and Mexico

On June 16, the US Department of Homeland Security (DHS) announced a 30-day extension—through July 21, 2020—of previously implemented measures. These measures, which have been in effect since March 21, 2020, suspend the admission of individuals seeking to enter the United States through land ports of entry and ferry terminals from Canada and Mexico for purposes of “nonessential travel.” Air travel continues to be exempted from this suspension.

For purposes of this suspension, “nonessential travel” is defined as trips that are for touristic purposes or are recreational in nature.

“Essential travel,” which continues to be permitted from Canada and Mexico, includes the following:

  • US citizens and lawful permanent residents returning to the United States
  • Individuals traveling for medical purposes (such as for the purpose of receiving medical treatment in the United States)
  • Individuals traveling to attend educational institutions
  • Individuals traveling to work in the United States (such as individuals working in the farming or agriculture industry who must travel between the United States and Canada in furtherance of such work)
  • Individuals traveling for emergency response and public health purposes (such as government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies)
  • Individuals engaged in lawful cross-border trade (such as truck drivers supporting the movement of cargo between the United States and Canada)
  • Individuals engaged in official government travel or diplomatic travel
  • Members of the US Armed Forces, and the spouses and children of members of the US Armed Forces, returning to the United States
  • Individuals engaged in military-related travel or operations

Processing of TN applications at US and Canadian ports of entry continue to remain available. However, it is recommended that the port of entry be contacted to confirm continued adjudication prior to finalizing travel plans.

Extension of I-9 Compliance Flexibility

On June 16, US Customs and Immigration Enforcement (ICE) announced that previously implemented flexibilities regarding Form I-9 compliance have been extended for an additional 30 days, through July 19, 2020. Employers that have not yet responded to Notices of Inspection (NOIs) received in March 2020 and were granted an automatic, 60-day extension will be granted an additional extension of 30 days. ICE has noted that this additional 30-day period will be the final extension granted for NOIs served in March 2020.

This prosecutorial discretion, which has been in effect since March 19, 2020, grants employers that are taking physical proximity precautions due to COVID-19 the ability to review employees’ identity and employment authorization documents without being in their physical presence. Employers are still required to inspect Section 2 documents remotely (such as over video link, fax, or email) and obtain, inspect, and retain copies of these documents within three business days in order to complete Section 2 of Form I-9. Employers are also permitted to designate an authorized representative to act on their behalf for the completion of Section 2.

After normal operations resume and physical inspection of the documents takes place, employers are required to enter “COVID-19” as the reason for the physical inspection delay in the Section 2, Additional Information field of Form I-9. Upon physical inspection of the documents, the employer should add “documents physically examined” and the date of inspection to the Section 2, Additional Information field (or to Section 3, as appropriate). For future I-9 audits, the “in-person completed date” shall be used as a starting point for these employees.

Similarly, upon return to normal operations, all employees who were onboarded through remote verification are required to report to their employer within three business days to complete the requisite in-person verification of identity and employment eligibility documentation.

Employers benefitting from this flexibility are required to provide their employees with written documentation of the remote on-boarding and telework policy.

Please note that the above-noted prosecutorial discretion granted by ICE applies only to employers that are fully operating on a remote work schedule. ICE has not granted exceptions for employers that have employees physically present at a work location.

Return to Work Resources

We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.

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If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Shannon A. Donnelly
Eleanor Pelta
Eric S. Bord

Laura C. Garvin 

For additional government-related guidance, learn more about our Washington strategic government relations and counseling practice.