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The End of Form I-9 COVID Flexibility: Everything You Need To Know
On March 20, 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) temporarily suspended the physical presence requirement of the Employment Eligibility Verification (For I-9) under Section 274A of the Immigration and Nationality Act.
To translate: DHS and ICE deferred the requirement that employers review identity and employment authorization documents in the physical presence of employees, instead allowing that process to occur remotely.
That physical inspection exemption—designed to keep employees and employers safe during the pandemic—applies exclusively to remote workers until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extensions of the flexibilities related to such requirements are terminated, whichever comes first.
While DHS and ICE have repeatedly extended the Form I-9 flexibilities over the past three years, the program is, in fact, coming to an end; the flexibilities are officially being terminated.
Employers have 30 days to reach compliance with Form I-9 Employment Eligibility Verification requirements after the COVID flexibilities sunset on July 31, 2023, an ICE news release stated. That means employers have until August 30, 2023, to complete in-person physical inspection of identity and employment authorization documents for employees whose documents were inspected remotely during the temporary flexibilities.
If you took advantage of the temporary Form I-9 flexibilities, read on to get all your most pressing questions answered and stay compliant.
When do I need to complete an in-person inspection of form I-9 documents?
Employers that have taken advantage of the temporary flexibilities are encouraged to ensure that all required physical inspection of identity and employment eligibility documents is completed by August 30, 2023 (30 days after the flexibilities end on July 31, 2023). This extension gives employers additional time to complete in-person physical inspection of identity and employment authorization documents and annotate the Form I-9 for this population.
Which documents do I need to re-review in person now that the flexibilities are lifted?
Every document for I9 that was reviewed remotely beginning March 2020 to present will need to be re-reviewed, in person. And, all new hire documents must now also be reviewed in person. Remote review is no longer legal after July 31.
How does this work for out-of-state form I-9 verifications? Are there alternative options?
USCIS, a DHS agency, states that an employer can appoint an individual of their choosing to physically inspect or reinspect I9 documents, including personnel officers, foremen, agents, or notary public. The DHS does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes; it can be anyone. If an authorized representative completes Form I-9 on behalf of the employer, the employer is still liable for any violations in connection with the form or the verification process.
In order to complete the inspection of identity and employment authorization documents via an authorized person, do one of the following:
- In the Additional Information field, employers for in-person, or authorized individuals for remote, should indicate “documents physically examined” and the date of inspection.
or - Complete Section 2 on a new Form I-9 and attach it to the Form I-9 used for remote inspection
What if an employee refuses to meet for a physical document inspection?
An employer cannot retain an employee who the employer knows is not authorized to work in the United States or that does not fulfill Form I-19 documentary requirements, including presenting documentation for in-person physical examination. To stay compliant, employers must complete Form I-9 for all new hires, including physically examining identity and work authorization documents.
We are a fully remote company with no in-person work. Are we required to do an in-person physical inspection of documents?
Yes, all new hire documents must be reviewed in person. Remote review is no longer legal after July 31.
What if we completed a remote inspection of an employee’s documents, but the employee separated from the company prior to completion of the in-person document inspection?
If the employee separates before the physical inspection can be completed, include an explanation in the Additional Information box on Form I-9 and the date of the employee’s separation.
For more FAQs on the end of COVID-19 flexibilities, check out the questions and answers on the USCIS website.