May 10, 2023
On May 4, 2023, the U.S. Department of Homeland Security (DHS) announced an end to the temporary flexibility permitting Form I-9 documents to be inspected remotely. Employers will have 30 days to reach compliance with Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023.
These flexibilities were introduced in March 2020 and extended several times throughout the COVID-19 pandemic. DHS encourages employers who have been relying on the temporary flexibilities to plan ahead and complete all required physical inspections of identity and employment eligibility documents by Aug. 30, 2023.
Background on COVID-19 Flexibilities
In response to the onset of the COVID-19 pandemic in March 2020, U.S. Immigration and Customs Enforcement (ICE) announced that it would defer the physical examination requirement for Form I-9 completion for certain employees working remotely due to the pandemic. Instead, initial inspections were allowed to occur remotely (e.g., over video link, fax or email), with the expectation that physical inspection would occur within three business days after normal operations resumed.
Since March 2020, ICE has allowed employers to continue to rely on the flexibilities until affected employees undertake nonremote 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. The May 4 announcement clarifies for employers that they will have 30 days from July 31, 2023, to reach compliance with Form I-9’s physical inspection requirement.
Implications for Employers
Employers now have until Aug. 30, 2023, to perform all required physical examinations of identity and employment eligibility documents for individuals hired on or after March 20, 2020, who have received only a virtual or remote examination under the flexibilities.
Under the flexibilities, employers with employees taking physical proximity precautions because of the COVID-19 pandemic were allowed to temporarily defer physical examination of employees’ identity and employment authorization documents. Instead, employers could examine the employees’ documents remotely and enter “COVID-19” as the reason for the physical examination delay in the Section 2 Additional Information field. Once the employees’ documents were physically examined, the employer would add “documents physically examined,” along with the date of examination, to the appropriate section of the form.
Potential Future Changes to Form I-9 Examination Procedures
On Aug. 18, 2022, DHS published a proposed rule that would allow alternatives to the Form I-9 physical document examination. The public comment period closed Oct. 17, 2022, and DHS is now reviewing the comments. A final rule is expected to be issued later this year.
Employers should stay informed on the latest updates to Form I-9 requirements and make necessary adjustments to their employment eligibility verification processes. Planning for and ensuring compliance with the Aug. 30, 2023, deadline will help maintain a compliant workforce and avoid penalties.
McGuireWoods will continue monitoring this issue. For assistance navigating these matters, please contact the authors or other members of the McGuireWoods labor and employment or immigration teams.
McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.