Complying with I-9 Verification as COVID-19 Flexibilities Expire

By: Tiara Quintana , Daniel J. McCoy

In May, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced that the Form I-9 flexibilities allowing for remote verification will end on July 31, 2023. DHS regulations designed to create a permanent remote examination process were anticipated but have not been issued. Therefore, employers must comply with the pre-pandemic Form I-9 in-person inspection and verification requirements for all new hires onboarded on or after August 1, 2023, including remote personnel. For all current employees whose Form I-9 documentation was inspected remotely under the temporary flexibility policy, employers must conduct an in-person reinspection of such documents and update the Form I-9s by August 30, 2023 in accordance with the guidance from the U.S. Citizenship and Immigration Services (USCIS).

Below are recommendations and practical guidance for compliance:

  • Employers should identify all Form I-9s completed from March 2020 to present, of both current and former employees, where verification of identity and employment eligibility documentation occurred only remotely (e.g., over video link, fax, or email).
  • For all such current employees, employers must conduct an in-person inspection of the Form I-9 documents by no later than August 30, 2023. This is required even if the employee remains fully remote. Notably, the use of E-Verify does not create an exception to the in-person physical inspection requirement, though employers do not have to create a new E-Verify case.
  • Unless truly not feasible, in-person verification should be conducted at an employer’s physical worksite by experienced HR personnel. Otherwise, an employer may lawfully authorize a representative to act on its behalf. Under federal law, this can be any person, including a notary public, or even a family member or friend; however, in California, a notary public must be a qualified and bonded immigration consultant pursuant to California Government Code section 8223.
  • Employers with highly distributed workforces, i.e., across many states and in areas where in-office inspection is cost prohibitive and/or simply not feasible, should strongly consider engaging an experienced, nationwide vendor (and vet the vendor’s processes for complying with applicable law, including California’s unique notary requirement) to locate appropriate representatives to conduct in-person inspections.
  • Regardless of whether a vendor is engaged, and especially where employers use a friend or family member, employers should review all such verifications, because the employer is ultimately liable for any violations or mistakes made in connection with the Form I-9 verification process.
  • In addition to the in-person inspection, the person who conducts the physical inspection must update the Form I-9 itself. Specifically, the Additional Information field in Section 2 should indicate “documents physically examined” and the date of the physical inspection. USCIS has provided examples of how to notate Form I-9s subject to a subsequent physical inspection, and specific instructions on correcting incorrect information and/or completing missing information.
  • If an employee subject to remote verification is no longer employed, employers should include an explanation in the Additional Information field that the employee separated before physical inspection could be completed, as well as the date of such employee’s separation.
  • If an employee presents documents that differ from those provided during the remote inspection, the employer may either (i) complete Section 2 on a new Form I-9 and attach it to the Form I-9 used for the remote inspection, or (ii) provide the document title, document number, issuing authority, and expiration date in the Additional Information field and notate that the employee presented this document at the physical inspection, though DHS recommends option 1.

For more information about the sunsetting of the Form I-9 flexibilities and go-forward requirements, the USCIS guidance linked above addresses a wide variety of scenarios. Employers should also work with experienced counsel to ensure compliance.


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