November 30, 2020

Volume X, Number 335

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November 30, 2020

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I-9 Compliance Flexibility Extended to August 19, 2020

The Department of Homeland Security (DHS) has extended its flexibility regarding the physical presence requirements for I-9 inspection for another 30 days, until August 19, due to the ongoing precautions related to the COVID-19 pandemic.

Eligible employers may continue to inspect Section 2 documents remotely (e.g., over video link, fax, or email) and must have written documentation of their remote onboarding and telework policy that is available to employees. If employers are not eligible for the flexibility, they may continue to designate authorized representatives to act on their behalf to review documents in person.

All employees who were onboarded remotely must report to their employer within three business days for in-person verification once the employer’s normal operations resume. This date may be different (earlier or later) than the date the government policy ends.

How does DHS define who is eligible for flexibility and when does that flexibility end as normal operations resume?

DHS has said that if employees are physically present at a work location, flexibility does not apply. This rigid interpretation lacks an understanding of the complexity of the current workforce, such as when Human Resources professionals are not on site. Therefore, each employer should design a policy around its particular situation, so the employer’s actions are defensible.

ICE may significantly increase audits as soon as worksites start reopening. Therefore, it is important to have a plan for reinstituting “normal” I-9 processes and making a good faith effort to comply. For more information on possible steps to take, please see our prior blog.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 202
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About this Author

Amy L. Peck, Immigration Attorney, Jackson Lewis, Worksite Compliance Lawyer
Principal

Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National...

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