The Department of Homeland Security ("DHS") announced on May 5, 2023, that the temporary I-9 flexibilities from the COVID-19 pandemic, which allowed employers to remotely inspect their employee's I-9 employment and eligibility documents will end on July 31, 2023. These flexibilities were initially announced on March 20, 2020, and have been extended several times.
With these flexibilities, employers were only required to inspect employees' Form I-9 employment and eligibility documentation in-person if the employee would physically "work at a company location on a regular, consistent or predictable basis." For those employees hired after April 1, 2021, who work remotely, employers have been temporarily exempt from physically inspecting their I-9 documentation until the employee moves to "non-remote work on a regular, consistent or predictable basis," or until the flexibilities were terminated, whichever occurred first.
Immigration and Customs Enforcement ("ICE") also announced that employers have until August 30, 2023, to complete physical in-person document reviews for those employees whose documents were reviewed virtually while the temporary flexibilities were in place.
DHS also published a Notice of Proposed Rulemaking wherein DHS is proposing alternative procedures required to perform Form I-9 verifications, to include virtual document examination. DHS recognizes that many employers have shifted hiring practices and may have increased the hiring of remote employees since the COVID-19 pandemic started.
DHS has provided some initial guidance to employers on commonly asked questions such as:
- If an employee has changed immigration status since they were
hired, employers may either:
- Employers should complete Section 2 on a new I-9 Form and attach it to the I-9 used for remote inspection. This is the option recommended by DHS.
- In the Additional Information field, provide the document title, document number, issuing authority, and expiration date (if any) of the new document and notate that the employee presented this document at physical inspection.
- If a document was valid at the time of inspection but has since expired at the time of physical inspection, the employer should not request a new document and can proceed with the physical inspection.
If an employer has employees working throughout the country, employers may opt to use an authorized representative to fill out their part on the Form I-9 and may also complete in-person inspections as needed.
Employers who have hired remote employees should prepare to begin the process for physically inspecting such I-9 documents in-person. Should you have any questions, please reach out to one of our attorneys to schedule a consultation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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