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May 2023: DHS Ends Form I-9 Requirement Flexibility

17 May

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Update Applicable to:

All employers

What happened?

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:

ICE Announcement

USCIS I-9 Central

Form I-9 Examples

Law Firm Summaries/Opinions:

Article 1; Article 2; Article 3; Article 4

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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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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