COVID-19 Flexibilities for Form I-9 end on July 31st
On May 4, 2023, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced that the COVID-19 physical inspection flexibilities for Form I-9 will end on July 31, 2023. Employers will have until August 30, 2023 to physically inspect identity and employment eligibility documents for any employees that were hired pursuant to these temporary flexibilities.
The COVID-19 Flexibilities
In March 2020, ICE and DHS announced the COVID-19 flexibilities for Form I-9 in response to the global COVID pandemic. Prior to the flexibilities, employers were required to physically inspect a new employee’s identity and employment eligibility documents within 3 days of the employee’s first day of work. Under the flexibilities, employers with employees taking physical proximity precautions due to COVID-19 were allowed to inspect employees’ identity and employment eligibility documents through remote means, such as over video link, fax, or email. However, for any remotely inspected documents, the original flexibilities required employers to physically inspect these documents and update the relevant Form I-9s within 3 days of the employer returning to normal operations.
In March 2021, ICE and DHS announced a more lenient version of the COVID-19 flexibilities. Specifically, for any employee who onboarded under the flexibilities, employers only need to physically inspect the employee’s identity and employment eligibility documents if they physically report to work at a company location on any regular, consistent, or predictable basis. ICE also announced that for employees hired on or after April 1, 2021, working exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the physical inspection requirements until they undertake non-remote employment on a regular, consistent, or predictable basis, or the flexibilities are terminated, whichever is earlier. This version of the flexibilities, which has been in effect for the last two years, will end on July 31, 2023.
What this means for our clients
Clients that utilized these flexibilities to remotely inspect employees’ identity and employment eligibility documents must complete the in-person inspection of the employees’ documents and update their Form I-9s before August 30, 2023. Although the flexibilities do not end until July 31, 2023, we recommend that clients utilizing these flexibilities begin to phase out the practice of remote document inspection now.
ICE and the U.S. Citizenship and Immigration Services (USCIS) have provided employers with guidance on the process of physically inspecting employees’ documents and updating their Form I-9. Any impacted employees must provide their identity and employment eligibility documents in-person to the employer, or its authorized or third-party representative, before August 30, 2023. Generally, the employer must update the Additional Information box in Section 2 of the I-9 with language that varies depending on the individual reviewing the documents. For example, if the individual physically inspecting the documents is the same individual that remotely inspected the documents, the individual should provide the date the documents were physically reviewed along with their initials. If the individual physically reviewing the documents is different from the individual who remotely reviewed the documents, the individual should note the date of the physical review as well as their full name and title.
Please note that impacted employees are allowed to provide different documents for the physical inspection than they provided for the remote inspection. Given the various issues that may arise during the physical inspection process, we recommend that our clients contact us with any questions about the physical inspection process and the Form I-9 updates related to the end of these COVID-19 flexibilities.