Washington, D.C. U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) today announced that the U.S. employers will have 30 days to reach compliance with the Form I-9 requirements after the COVID-19 flexibilities ends on July 31, 2023. ICE had annouced this flexibility for the first time on March 2020 and subsequently extended this flexibilities (here, here) hroughout the COVID-19 pandemic. DHS advises employers who have been using those temporary flexibilities to plan ahead to ensure that all required physical inspection of identity and employment eligibility documents is completed by Aug. 30, 2023.
In March 2020, ICE had 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. Today’s announcement clarifies for employers that they have until Aug. 30, 2023, to perform all required physical examination 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.
As noted in the March 2020 announcement, under the flexibilities, employers with employees taking physical proximity precautions due to the COVID-19 pandemic were allowed that the employers could examine the employees’ documents remotely (e.g., over video link, fax, or email) and enter “COVID-19” as the reason for the physical examination delay in the Section 2 Additional Information field when physical examination took place in the future. Once the employees’ documents were physically examined, the employer would add “documents physically examined” with the date of examination to Section 2 Additional Information field on the Form I-9, or in Section 3, as appropriate.
Written remote onboarding and telework policy is required
Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.
In-person verification of identity and employment eligibility is required within three business days from the resumption of normal operations
Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. Once the documents have been physically inspected, the employer should 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.
Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.
This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis. Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.”
No remote verification flexibility for employees who are physically present at a work location
If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. For more information, please see the March 20, 2020 guidance.
Going forward DHS will continue to monitor the ongoing national emergency and provide updated guidance as needed. Employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.
Past Flexibility Notices:
- December 2021 Notice
- August 2021 Notice
- May 2021 Notice
- March 2021 Notice
- January 2021 Notice
- December 2020 Notice
- November 2020 Notice
- July 2020 Notice
- May 2020 Notice
- March 2020 Notice (Original I-9 Flexibility Notice)
Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. Changes in immigration policies and procedures are complex and may require a consultation with an experienced immigration lawyer.
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