The U.S. Immigration and Customs Enforcement (ICE) announced that employers will have 30 days to physically inspect identity and employment eligibility documents for their remote employees. The COVID-19 flexibilities for Form I-9 review requirements, which allowed for remote document verification, are scheduled to expire on July 31. However, employers will have until August 30 to conduct in-person inspections for documents that were previously examined remotely.
How did we get here?
Since March 2020, when the COVID-19 pandemic began, virtual and remote I-9 verification has been allowed for employees who are working remotely or for new employees who started after April 1, 2021, and are working remotely due to the pandemic. These flexibilities have been extended several times, with the most recent extension announced in October 2022, pushing the expiration date to July 31.
The recent announcement from ICE clarifies that employers have until August 30 to complete all required physical examinations of identity and employment eligibility documents for individuals hired on or after March 20, 2020, who have only undergone virtual or remote examination. This grace period allows employers to ensure compliance with the in-person inspection requirement for their remote employees before the deadline.
What do I need to do?
Plan ahead and implement the necessary processes for conducting physical inspections within the given timeframe. If physical inspections for employees returning to in-person work or those reporting to a company location on a regular, consistent, or predictable basis were already completed, those I-9s are considered compliant with the previous guidance.
Start by creating a list of employees hired since March 20, 2020, who require physical document inspection and prioritize their inspections accordingly.
When conducting the physical inspection of previously remotely examined documents, the employer representative who initially virtually examined the documents should add the statement "documents physically examined" along with the date of examination in the Additional Information box of Form I-9. This additional information helps to clearly indicate that the documents have undergone the necessary physical inspection.
If the original employer representative is no longer available, the employer representative conducting the physical inspection should complete a new Section 2 and attach it to the original I-9.
The U.S. Citizenship and Immigration Services website provides examples of how to annotate the I-9 upon physical inspection of the documents here.
What’s next?
In August 2022, the U.S. Department of Homeland Security (DHS) issued a proposed rule that would allow alternative procedures for examining identity and employment eligibility documents. The rule aims to address advances in technology and new work arrangements, potentially providing permanent alternatives to in-person inspections. The DHS is currently reviewing public comments on the proposed rule and intends to release a finalized version later in 2023.
The DHS has advised that employers may continue to use the current version of the Form I-9, with the October 31, 2022 expiration date until further notice. There is some speculation that the updated version of the Form I-9 will coincide with the issuance of a final rule.
As the August 30 deadline approaches, employers are encouraged to stay updated on any future announcements or changes regarding Form I-9 requirements and to ensure compliance with the physical inspection obligations for remote employees.