At a Glance

The U.S. Department of Homeland Security and U.S. Immigration and Customs Enforcement recently announced that COVID-19 flexibilities regarding compliance with Form I-9 requirements, specifically the ability to inspect documentation remotely, will expire on July 31, 2023. Employers will have an additional 30 days to physically inspect I-9 documentation that was remotely reviewed under the flexibilities.

Background

All employers are required to complete a Form I-9 for every person hired for employment after Nov. 6, 1986. Completion of this form requires employers to examine originals of an employee’s identity and employment authorization documents, in the physical presence of the employee, within three business days of hire.

The COVID-19 flexibilities, initially announced on March 20, 2020, have allowed employers to defer the requirement that employers examine originals of employees’ identity and employment authorization documents in the employees’ physical presence, instead allowing that to occur remotely, with the expectation that physical inspection would occur after normal operations resume.  

What This Means

Based on the announcement of the flexibilities’ sunsetting, employers must:

• As of Aug. 1, 2023, resume reviewing all new employees’ I-9 documentation through physical inspection within three business days of the date of hire; and
• Prior to Aug. 30, 2023, complete a physical inspection of I-9 documentation that was previously remotely reviewed under the flexibilities.

Taft recommends employers review their employee population for any hires since March 2020 to determine whether their I-9 documents were reviewed in person or remotely. If remotely, a physical examination must take place before Aug. 30, 2023 and the employer will need to add “documents physically examined”, including the date of the examination, to the Section 2 “Additional Information” field on the Form I-9, or in Section 3 for re-hires, as appropriate. 

For employers whose employees remain remote and had provided their documents virtually, Taft recommends utilizing a third-party agent to physically review and verify I-9 documentation on the employer’s behalf. Additional options could include reviewing I-9 documentation physically at a retreat or in-person meeting if completed before Aug. 30, 2023. In fact, any employee or authorized representative of the employer can complete this physical inspection, thus easing the burden on employers who might otherwise have to travel to remote employees.

What’s Next

More changes are expected to the I-9 requirements as the U.S. Department of Homeland Security has proposed a rule that would allow alternative procedures for the examination of identity and employment eligibility. The rule may be finalized later this year. Taft will continue to provide updates regarding any further changes to the I-9 regulations.