Since March 20, 2020, the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have allowed employers flexibilities with remote workers to defer physical inspection of I-9 documents temporarily and instead electronically verify I-9 documents over a video link, fax or email. These flexibilities were available for employees who were working remotely due to COVID-19 precautions until they began working non-remotely “on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.”
On May 4, DHS and Immigration and Customs Enforcement (ICE) announced that the flexibilities will sunset on July 31, 2023, and employers have 30 days (August 30, 2023) to reach I-9 compliance.
What does this mean?
- Employers should plan for and implement in-person verification of identity and employment eligibility documentation for employees hired after March 20, 2020, to be conducted by an authorized representative. This includes all applicable employees, even those who work remotely on a permanent basis.
- Based on the published guidance, if the person who performed the remote inspection also performs the physical inspection, they should indicate the date they physically examined the documents and then add their initials in the “Additional Information” field. If the person who performed the remote inspection cannot perform the physical inspection, the person who performs the physical inspection should indicate the date they physically examined the documents as well as their full name and title in the “Additional Information” field.
- If the employee presents acceptable documentation for in-person inspection that differs from the ones presented during the remote inspection, the employer can either complete Section 2 on a new Form I-9 and attach it to the remote inspection I-9; or, the employer can provide the document title, document number, issuing authority, and expiration date (if any) of the new document in the “Additional Information” field and notate that the employee presented this document at physical inspection.
- For employees who separated prior to the physical inspection, employers should include an explanation in the “Additional Information” box along with the date of the employee’s separation.
- Employers cannot retain an employee the employer knows is not authorized to work in the United States or does not fulfill Form I-9 documentary requirements. This includes presenting documentation for in-person physical inspection.
- Employers should neither create a new E-Verify case for re-inspected employees nor should they update the E-Verify case in connection with the physical inspection.
Employers are encouraged to plan for this August 30 deadline to remain in compliance.
Please contact the author if you have any questions about this latest development.