Update Applicable to:
On May 5, 2023, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) released an announcement stating employers have 30 days to comply with Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023.
What are the details?
In March 2020, 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. In follow-on guidance, ICE noted that employers could continue to implement the flexibilities until affected employees 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. In October 2022, DHS and ICE announced that the flexibilities would be extended until July 31, 2023.
DHS published a Notice of Proposed Rulemaking for alternative procedures allowing remote document examination for Form I-9 last year. DHS anticipates publishing a Final Rule in the Federal Register that will implement this proposal.
For references and additional information, please see the links below:
Law Firm Summaries/Opinions:
What do employers need to do?
Employers must ensure that all required physical inspection of identity and employment eligibility documents for those individuals hired on or after March 20, 2020, and who have only received a virtual or remote examination under the flexibilities, are completed by no later than August 30, 2023. If an employer performed both the remote inspection and the physical inspection, they must note that they physically examined the documents and the date, and then add their initials in the “Additional Information” field in Section 2. They would do the same if they conducted both the remote inspection and physical inspection in connection with a reverification. If an employer is performing only the physical inspection, they must note that they physically examined the documents and the date and add their full name and title in the “Additional Information” field in Section 2. They would do the same if they are conducting only the physical inspection in connection with a reverification.
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