The End of the Form I-9 Flexibility Provisions
As we all know, COVID-19 changed everything, and the Form I-9 process was no exception. On March 20, 2020, the Department of Homeland Security (DHS) announced flexibility in I-9 requirements by *deferring* the physical presence requirements associated with completing Section 2 of the Form I-9. DHS allowed employers who were operating remotely because of COVID-19 to review I-9 documents virtually (via email, fax or video link, for example).
Note that DHS deferred the in-person I-9 document review requirement, rather than suspending the requirement. In its announcement, DHS mandated that, within three (3) business days of either (1) returning to “normal operations” or (2) the expiration of DHS’s I-9 flexibility provisions, employers had to conduct an in-person review of the I-9 documents they had previously reviewed virtually pursuant to the flexibility provisions.
DHS has extended its I-9 flexibility provisions repeatedly since March 2020, but they are currently set to expire on May 31, 2021. Additionally, many employers have already returned to “normal operations” or have a date set to do so. Even if DHS extends the I-9 flexibility provisions again, it is important for employers to start planning now on how they will carry out their in-person review of the I-9 documents that they have reviewed virtually over the last year.
As employers welcome a return to normal operations, DHS, too, will soon return to its normal operations and its focus on employer compliance. Businesses should work with counsel to discuss their Form I-9 process.