I-9 Flexibility is Over

I-9 Compliance Update

COVID-19 Form I-9 Exceptions Expiring Soon!

During the peak of the pandemic (and then for some time after), the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced various extensions the Form I-9 requirement to review documents in person for employees working remotely as a result COVID-19 precautions. Instead, employers were allowed flexibility in how they reviewed documents, such as via video conference call or a scanned copy. This flexibility did not completely remove the requirement to review documents in person, rather it extended the timeline. The expectation was (and still is) that when COVID-19 precautions faded, employers would then examine the I-9 documents they reviewed virtually, in person.

Well folks, we’ve reached that point! DHS will not be extending its most recent deadline and will sunset the accommodation on July 31, 2023.

So, what does this mean?

It means that employers will need to review, in person, Form I-9 documents that were virtually examined for any employees hired on or after March 20, 2020 (when the original temporary guidance was released). Anyone hired prior to this date, or anyone not working remotely due to COVID, should also have technically already been examined in person, per I-9 requirements. The physical inspection should be completed by July 31, 2023. Now, will DHS be standing at your front door on August 1st demanding to look at your I-9’s? Probably not – so there is some flexibility with the timeline as long as it is completed as soon as feasible.

DHS has specified that once normal operations resume, the employer must physically inspect the original documents that were presented in an alternate format, and complete Section 2 of the Form I-9 Additional Information to say “documents physically examined” along with the date. If the person who originally completed Section 2 and performed the remote inspection is no longer able to examine the physical documents, then you must also list the full name and title of the person who physically examined the documents. DHS has provided the example below.

We understand it is not possible to fly every remote worker to your headquarters to present these documents – rest assured there are other options! Some background check vendors have authorized representatives who can review the physical documents on your behalf. There are also other remote Form I-9 vendors that we are happy to recommend who can assist! However, if you know a remote employee will be visiting your office soon, this would be a good time to also have them present their documents to finalize their Form I-9.

Moving Forward…

Starting August 1, 2023, employers will no longer be able to examine I-9 documents virtually and will need to examine physical documents within 3 business days – the same rules that applied prior to COVID. If you hire most or all your employees remotely, you may need to work with a vendor as mentioned above, to ensure your I-9’s are compliant.

Every employee is required to complete a Form I-9 – let this message also serve as a friendly reminder to complete an I-9 audit if you haven’t done so in over a year (we recommend annual audits)!