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ICE Extends COVID-19-Related I-9 Compliance

July 22, 2020

A policy permitting acceptance of remote verification in limited circumstances has been extended 30 days through August 19.

The US Immigration and Customs Enforcement (ICE) announced on July 18 that it has extended the flexibilities relating to Form I-9 compliance for an additional 30 days, through August 19, 2020, due to ongoing coronavirus (COVID-19) precautions. ICE also stated that employers who were served Notices of Inspection (NOI) in March 2020 will not be granted additional extensions after July 19.

This prosecutorial discretion grants employers who are taking COVID-19-related physical proximity precautions the ability to review employees’ identity and employment authorization documents without being in their physical presence. Employers must still 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 to complete Section 2 of Form I-9. Employers may also 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 must indicate “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.

Upon return to normal operations, all employees who were on-boarded through remote verification must report to their employer within three business days to complete the 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.

This prosecutorial discretion applies only to employers who are fully operating on a remote work schedule, and employers with physically present employees have not been granted exceptions.

ICE and the US Department of Homeland Security had initially granted flexibilities relating to the in-person physical document inspection on March 19, 2020, which had been in effect for a 60-day period through May 19. This prosecutorial discretion was extended for additional 30-day periods on May 19 and June 19.

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.

Coronavirus COVID-19 Task Force

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. Find resources on how to cope with the post-pandemic reality on our NOW. NORMAL. NEXT. page and our COVID-19 page to help keep you on top of developments as they unfold. If you would like to receive a digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts, and download our biweekly COVID-19 Legal Issue Compendium.

Contacts

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

Miami
Laura C. Garvin

San Francisco
A. James Vázquez-Azpiri
Christina M. Gonzaga

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