On May 5, 2023, U.S. Department of Homeland Security (DHS) and U. S. Immigration and Customs Enforcement (ICE) announced employers have 30 days from the July 31, 2023, expiration of the temporary flexibilities for Form I-9 enacted during the COVID-19 pandemic to conduct in-person inspections and correct Forms I-9 completed using the virtual remote flexibilities. Here is what you need to know and the steps you should take to ensure compliance.
Summary of Form I-9 Review Changes
In March 2020 during the COVID-19 pandemic, ICE announced that it would defer the requirement that employers review 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 within three business days after normal operations resumed. Employers were allowed to inspect the Section 2 documents remotely (e.g., over video link, fax or email) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers were required to enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection took place after normal operations resumed. Once the documents were physically inspected, employers were required to add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3 as appropriate. In following guidance, ICE allowed employers to continue to implement the flexibilities until affected employees engaged in non-remote work on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements was terminated, whichever was earlier. In October 2022, ICE extended the flexible processes until July 31, 2023.
Temporary Flexibilities End on July 31, 2023
On May 5, 2023, DHS and ICE announced that employers have 30 days to reach Form I-9 compliance after COVID-19 flexibilities end on July 31, 2023. Employers must resume conducting in-person Form I-9 document inspections after July 31, 2023. Employers have until August 30, 2023, to complete in-person physical document inspections for employees whose documents were inspected remotely during the temporary flexibilities. Employers also have until August 30, 2023, to correctly annotate Forms I-9 completed using virtual inspection in the following way:
- If the person conducting the in-person document inspection is the same person who did the remote inspection, the new person should write “COVID-19” and “documents physically examined,” along with the inspection date, in the Section 2 Additional Information field on Form I-9 or Section 3 where appropriate.
- If the person who conducted the remote inspection is different from the one conducting the in-person inspection, DHS advises the new person complete a new Section 2 of Form I-9 and attach it to the previously completed remote inspection Form I-9.
Develop a Game Plan
The July 31, 2023, expiration of temporary flexibilities and the 30-day grace period to comply with Form I-9 requirements mean employers must develop a game plan now. While ICE permits employers to fix minor technical or procedural violations, if those violations go uncorrected or are numerous, employers may be subject to civil fines, criminal penalties, debarment from government contracts, and specific court orders. Employers should:
- Designate an employer representative in charge of arranging and conducting in-person inspections for employees inspected virtually since March 20, 2020, and correctly annotating Forms I-9. Be mindful this process will be time consuming and additional support and resources may be required depending on how many virtual inspections occurred during the temporary flexibilities period.
- Immediately start physically examining documents for newly hired employees where possible.
- Identify employees hired since March 20, 2020, who were verified remotely.
- Coordinate with those employees to see if they will be near the employer representative before July 31, 2023, and, if so, arrange a time for in-person inspection.
- Designate an authorized representative to conduct an in-person inspection for employees unable to travel to the employer representative for inspection. Note, the authorized representative need not have any particular qualifications, licensing, knowledge, experience or affiliation with the employer. However, employers should choose these representatives carefully, as employers will be liable for any violations concerning the form or verification process, including any sanctions for legal violations committed by the person. A Notary Public can be a viable option for this role as they are usually easy to find and accustomed to reviewing official documents and witnessing signatures.
Answers to Common Questions
Due to the unprecedented nature of ICE extending flexibilities concerning Form I-9 requirements, many employers likely have questions now that the deadline for compliance is looming. Here are some answers to commonly asked questions.
- What if we completed remote inspection of an employee’s documents, and the employee separates from employment before we complete the in-person inspection? Simply include an explanation in the “Additional Information” box on the Form I-9 and the employee’s date of separation.
- What if an employee refuses to meet for an in-person document inspection? Attempt to arrange a meeting for the employee with an authorized representative for a more convenient in-person inspection. If the employee refuses that, the employee cannot be retained as an employee due to his or her failure to fulfill Form I-9 documentary requirements proving authorization to work in the U.S.
- What if an employee changes immigration status since the time of the virtual inspection and presents different documents for the in-person inspection? The employer may either 1) Complete Section 2 on a new Form I-9 and attach it to the Form I-9 used for remote inspection and notate that the employee changed their immigration status in the Additional Information field; or 2) Provide the document title, document number, issuing authority, and expiration date (if any) of the new document and notate that the employee changed their immigration status in the Additional Information field.
- During the pandemic, we switched to an all remote work arrangement for all employees. Do we still have to conduct in-person Form I-9 inspections for those conducted virtually during the pandemic? Yes, employers must physically examine documents for those employees who were hired on or after March 20, 2020, and for whom the employer has to date only conducted a remote inspection consistent with the flexibilities first announced in March 2020.
Get Smart HR
During the pandemic, Smart HR kept you up to date on all DHS and ICE notifications of changes to Form I-9 policies. We’ve now come full circle with information on the latest announcement that the temporary flexibilities are ending with thoughtful, concise information and guidance on how to stay compliant with these changes. For those of you lamenting the logistics of resuming in-person verification processes, there may be hope. In August 2022, in recognition of the changing workforce landscape that now includes far more telework and remote work arrangements, the DHS proposed “Optional Alternatives to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9).”
The public was invited to comment on the DHS’s notice of proposed rulemaking, which closed in October 2022. As soon as DHS issues a final rule, Smart HR will be the first to let you know. In the meantime, if you have questions or issues concerning Form I-9 compliance, get Smart HR and call today.
