Are You Keeping an Eye on Your Form I-9?!

May 26, 2022

Recently, we have been fielding calls from clients regarding “remote” Form I-9 verification. The current rule is that employers can ONLY verify I-9 forms remotely for employees who are remote due to COVID -19. For the curious, read our FAQ below:

1. What was the rule pre-COVID?

The Department of Homeland Security (DHS) has ALWAYS required an employer to verify Form I-9 documents in-person. Even for that salesperson you hired out in California—either they had to fly to headquarters so you could do the verification or you had to hire an authorized agent to do the in-person verification in California for you. It must be completed within three business days of hire.

2. What changed with COVID?

On March 20, 2020, as a result of the pandemic, the DHS announced employers were allowed to remotely review employee Form I-9 documents if the employee was working remotely.

The DHS then extended the flexible Form I-9 requirements on April 1, 2021 and again on May 1, 2022. The current expiration date is October 31, 2022. In the 2021 announcement, the DHS specifically stated employers may remotely review employee Form I-9 documents if, and only if, the employee works remotely due to COVID-19 related precautions. The DHS has also stated that once the flexible Form I-9 requirements end, all employers who verified Form I-9 documents remotely are required to reverify them in-person within three business days.

3. This is crazy! Is there any chance the DHS might change its rules on this? We are now hiring remote workers all over the country. Are we really going to have to redo all our remote I-9s on October 31, 2022?

The DHS has asked for public comments on whether it should revise the Form I-9 requirements to permanently allow for remote inspection for any reason. We hope the DHS lifts the “redo” requirement but at this point, that is  uncertain.

As always, we will keep you informed on any updates the DHS has regarding Form I-9 compliance. Until then, contact your Ruder Ware’s COVID-19 Focus Team with any questions.

Special thanks to Summer Associate Jacob Schraeder for his assistance in drafting the post.

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