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United States – Flexibility in Physical Inspection Requirements for Form I-9 Extended

US–Relaxed I-9 Physical Inspection Requirement Extended

The current relaxation in I-9 verification, for employment purposes, only defers the in-person physical inspection requirement on a temporary basis. This was implemented on March 19, 2020, to accommodate remote work arrangements. The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) recently announced that the expiration date for these accommodations is now July 19, 2020.

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On June 16, 2020, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) extended flexibility in requirements related to Form I-9 compliance for U.S. employers operating 100 percent remotely due to the ongoing COVID-19 pandemic.1  

This relaxation in I-9 verification, which only defers the in-person physical inspection requirement on a temporary basis, was implemented on March 19, 2020, to accommodate remote work arrangements.1  The expiration date for these accommodations is now July 19, 2020.

WHY THIS MATTERS

Under the current circumstances created by the COVID-19 pandemic, employers are offered flexibility and need not review the employee’s documents in their physical presence.2  Instead, employers may choose to inspect the relevant documents remotely (via video, fax, or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for the purposes of completing Section 2.

Further, to comply with this temporary guidance, employers that avail themselves of the remote verification procedures must provide written documentation of the company’s remote on-boarding and telework policy to each new employee.  This could mean additional administration for employers.

Background

To comply with federal law, U.S. employers must complete Form I-9, Employment Eligibility Verification requirements to verify the identity and employment authorization of their U.S. workforce including both U.S. citizen and non-citizen workers.  Several sections of the Form I-9 require that the employee present his identity and employment authorization documents to the employer for physical inspection.  Failure to properly comply with Form I-9 requirements can result in monetary fines imposed on the employer, disbarment from government contracts, and, in certain situations, criminal penalties.3  

Further Details on I-9 Compliance during Coronavirus Pandemic

Once regular operations resume, all employees who were on-boarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility.  The employer should then add “documents physically examined” with the date of inspection, as appropriate.

If there are employees physically present at a work location, DHS has indicated that no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.  However, if newly-hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS stated that it will evaluate this on a case-by-case basis.

Further, DHS has provided that any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees when reviewing Form I-9 for completeness and accuracy.

KPMG NOTE

Finally, E-Verify employers should continue to follow current guidance and create cases for their new hires within three business days from the date of hire.  Employees are also given more time to resolve a TNC due to Social Security Administration closures.  Employers cannot take adverse action against an employee whose E-verify case is in interim status.

Employers must monitor the DHS and ICE websites for additional updates about when the extensions end and normal operations resume.

FOOTNOTES

1  ICE Announcement (June 16, 2020);

DHS Announcement (June 16, 2020);

Initial Guidance issued by ICE (March 19, 2020).

2  For previous coverage, please see the following issues of GMS Flash Alert: 2020-159 (April 8, 2020) and 2020-095 (March 23, 2020). 

3  Instructions for Form I-9 are available here.

* Please note that KPMG LLP (U.S.) does not provide any immigration services or legal services. However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.

 

The information contained in this newsletter was submitted by the KPMG International member firm in Canada.

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© 2021 KPMG LLP, an Ontario limited liability partnership and a member firm of the KPMG global organization of independent member firms affiliated with KPMG International Limited, a private English company limited by guarantee. All rights reserved.

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Flash Alert is an Global Mobility Services publication of KPMG LLPs Washington National Tax practice. The KPMG logo and name are trademarks of KPMG International. KPMG International is a Swiss cooperative that serves as a coordinating entity for a network of independent member firms. KPMG International provides no audit or other client services. Such services are provided solely by member firms in their respective geographic areas. KPMG International and its member firms are legally distinct and separate entities. They are not and nothing contained herein shall be construed to place these entities in the relationship of parents, subsidiaries, agents, partners, or joint venturers. No member firm has any authority (actual, apparent, implied or otherwise) to obligate or bind KPMG International or any member firm in any manner whatsoever. The information contained in herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

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