Temporary U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) guidance permitting businesses operating remotely due to COVID-19 to conduct remote Form I-9 document inspections is set to expire on July 31, 2023. This announcement is in line with recent statements from the Biden administration declaring that COVID-19 health emergencies will end in May.
ICE had extended the COVID-19 remote completion flexibilities for Form I-9 from Nov. 1, 2022, through July 31, 2023. The policy extension ensured that employees who, due to COVID-19 policies, do not report to a physical location on a regular, consistent, or predictable basis continued to be exempt from Form I-9 in-person verification requirements.
This temporary flexibility has been in effect since March 2020, when DHS was presumably responding to increased remote employment due to COVID-19. These flexibilities were narrowly and exclusively applied to employers and workplaces that were 100 percent remote, reflecting the agency’s long-standing resistance to remote I-9 verification. DHS and ICE granted some discretion in the physical presence requirements associated with Form I-9, allowing employers to inspect documentation remotely. Employers were instructed to state “COVID-19” in Section 2 on Form I-9.
With the termination of this remote flexibility, Form I-9 completion for intentionally remote hires must be performed in person by either the employer or an authorized representative for the employer.
Employers preparing for return to in-person work should consider reviewing any Form I-9 completed during COVID-19 for employees who were hired on or after March 20, 2020. Employers will be required to comply with the following steps for in-person verification of Form I-9 after July 31, 2023, once normal operations resume:
All employees who were on boarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.
Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to Section 3 as appropriate. Employers should also enter “COVID-19” as the reason for the physical inspection delay in the Section 2, Additional Information field once physical inspection takes place after normal operations resume.
If the person who virtually examined the documents is not the one who performs the physical inspection, the employer representative conducting the physical inspection should complete a new Section 2 and attach that to the complete remote inspection Form I-9.
Additional guidance from DHS on in-person verification should be soon to come.
Sarah Feather also contributed to this article.