16 May 2023

United States

DHS Announces End of Temporary COVID-19 I-9 Completion Flexibilities on July 31, 2023; Employers Have Until August 30, 2023, to Complete Physical Inspection of Documents Previously Inspected Remotely

The Department of Homeland Security (DHS) has announced that the temporary “flexibilities” that had been in place since March 2020 and have been extended a number of times for the completion of I-9 Employment Eligibility Verification forms will end on July 31, 2023.  These flexibilities were originally granted in response to the difficulties created by the COVID-19 pandemic and allowed employers with employees working remotely to verify the documents confirming an employee’s identity and employment eligibility by such remote means as video conferences, faxes, and e-mail transmissions rather than through a physical inspection in an in-person meeting.  Now that the COVID-19 public health emergency has ended, DHS considers that such flexibilities are no longer necessary.

Starting on August 1, 2023, proper I-9 completion requires that an employer, or its representative or agent, meet in person with each new hire and physically inspect the original identity and employment authorization documents presented by the new hire.  Such physical inspections will require a face-to-face meeting between the employer or its representative or agent and the employee.

In addition, Immigration and Customs Enforcement (ICE) has announced that employers will have to complete in-person physical inspections of all identity and employment eligibility documents previously provided and inspected remotely by no later than August 30, 2023.  After an employee’s documents have been physically examined, the employer should note “documents physically examined” and the date of examination in the Section 2 “Additional Information” field on the Form I-9 or in Section 3, as appropriate.  It is not clear what penalties will be imposed on employers who do not complete the necessary physical inspection of an employee’s documents by August 30, but a wide range of civil monetary penalties may be assessed for paperwork and substantive violations related to the I-9 process.

The additional 30 days beyond August 1, 2023, granted by ICE for the physical inspection of documents previously inspected remotely is a welcome development, but employers with large populations of employees working remotely will face a challenging task in having this documentation inspected physically and should start the process as soon as possible to ensure that it is completed within the necessary time frame.  Some employers may find that it is necessary to designate third-party agents to complete the process at off-site locations.  Employers should also be mindful that, if any employee whose Form I-9 was completed through remote inspection starts on-site employment on a regular, consistent, or predictable basis before July 31, that employee’s documents must be physically inspected within three business days of the start of the on-site employment.

DHS has also indicated that it plans to publish a Final Rule that will allow “alternative procedures” for the inspection of I-9 identity and employment eligibility documents to be used.  This would be based on the provisions contained in the Notice of Proposed Rulemaking that was published by DHS in August 2022 and allowed the inspection of such documents “over video link, fax, or email.”  Until such a rule is published and becomes effective, employers will have to continue the physical inspection of these documents through face-to-face meetings with employees.

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