Professional Service Agreement

I-9 Compliance Flexibility Extended Again But Only for COVID Precautions

October 19, 2022

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 flexibility allows qualifying employees to present virtually their I-9 identity and employment authorization documents. 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.

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.