I-9 flexibility for remote workers is being extended again – through July 31, 2023 – but, it appears, only for safety precautions due to COVID-19.

The U.S. Immigrations and Customs Enforcement and Department of Homeland Security made the announcement last week. The flexibility allows qualifying employees to present virtually their I-9 identity and employment authorization documents. (The normal rule, first amended in March 2020 due to the pandemic, required these documents to be presented to the employer or its agent in person.) Before the announcement this week, the I-9 flexibility was set to expire in two weeks, on October 31.

The extended flexibility applies to employees who are working exclusively and alone in remote settings, whether or not their co-workers work remotely.

The ICE/DHS announcement was somewhat surprising, given that COVID restrictions have loosened so much since 2020. The extension may also be difficult for employers, especially those with large remote workforces. These employers may have already prepared to move to all in-person inspection by October 31, only to learn with two weeks to go that they can continue to perform some inspections remotely until next year.

Remote presentation guidance

As we previously reported, 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 employees who were working exclusively and alone in remote settings, 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, within three business days of the employee’s first day of employment.

(In the case of non-remote workers, the physical inspection must be performed in person within three business days of the employee’s first day of employment.)

Concerns for employers

It is not entirely clear that the I-9 flexibility applies only when employees are working remotely as a COVID safety precaution. However, that seems to be the case. The ICE/DHS announcement says that the extension is “[d]ue to continued safety precautions related to COVID-19.” The same qualifier appeared in guidance issued by ICE/DHS in March 2021, which said that remote presentation of documents was an option only if the employer or employee was “taking physical proximity precautions due to COVID-19.”

Therefore, it appears that employers should allow remote presentation only where there is a causal connection between COVID safety concerns and the employer’s decision to authorize remote work – for example, if an immunosuppressed employee needs to avoid possible exposure to COVID and has been allowed to work from home as a reasonable accommodation, or if there is a high COVID positivity rate in the area where the employee works.

On the other hand, if the remote work is for the convenience or personal preference of the employee or for business reasons of the employer, it appears that the I-9 flexibility will not apply. In other words, employees working remotely for these reasons should still present their documents in person. Otherwise, the employer risks being cited for I-9 violations and penalties assessed on a per-affected-employee basis.

Options for employers

Employers should consult with their immigration counsel if they have any concerns about the applicability of this I-9 flexibility to their specific circumstances. In addition, an employer could require remote workers to follow the normal in-person document inspection rules but use one of the many available vendors to perform this function as its agent.

Source: Constangy Brooks Smith & Prophete LLP – Willard Krasnow

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