Form I-9 Updates

Extension of COVID flexibility rules:  On October 11, 2022, U.S. Immigration and Customs Enforcement (ICE) announced an extension of the Form I-9 flexibilities until July 31, 2023.  The flexibilities were first announced in March 2020, updated in March 2021, and followed by President Biden’s February 18, 2022, announcement of the continuation of the state of the National Emergency concerning the COVID-19 pandemic.  A further extension was granted on April 25, 2022, and was set to expire on October 31, 2022.

What this means: as of April 1, 2021, the requirement that employers conduct an in-person inspection of employees’ Form I-9 identity and employment eligibility documentation applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis. If employees hired on or after April 1, 2021, work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the physical inspection requirement until they undertake non-remote employment on a regular, consistent, or predictable basis or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. Employers who are unable to timely inspect and verify the documents in person for employees hired since March 20, 2020 (in cases where affected employees are no longer employed by the company, for example) may retain an explanatory note with the employee’s Form I-9 for evaluation by ICE in the event of an audit. The current flexibility rules do not preclude employers from commencing, at their discretion, in-person verification of documents for employees hired on or after March 20, 2020, that presented such documents for remote inspection based on the flexibility rules first announced in March 2020.

Extension of Form I-9 Validity:  The current version of Form I-9 indicates an expiration date of October 31, 2022.  The USCIS announced on October 12, 2022, that employers may continue to use this form until further notice.  The Department of Homeland Security (DHS) will publish a notice in the Federal Register when the new version of Form I-9 becomes available.