Form I-9 flexibility ends July 31 – 4 things employers must do
As of July 31, 2023, employers will no longer be able to review Form I-9 documents remotely.
The Form I-9 needs to be completed for all new hires and is used to ensure that individuals are eligible to work in the United States. As part of the Form I-9 process, employees present documents that confirm identity and employment eligibility.
Since March 20,2020, COVID-19 flexibility provisions have allowed employers to review those documents remotely (via video, fax, or email).
The Department of Homeland Security has announced that this flexibility expires on July 31. As a result, employers need to take steps to ensure current forms are up-to-date and future form inspections are properly completed.
If they have reviewed employee documents remotely, employers have until August 30, 2023, to do an in-person inspection of documents and update the Form I-9.
They need to:
- Contact employees whose documents were reviewed remotely and make arrangements to physically inspect the documents in the employee’s presence.
- Have the employee report to the employer or the employer’s representative for an in-person verification of identity and employment eligibility documentation.
- Physically examine the employee’s identity and work authorization documentation with the employee present.
- Update the employee’s Form I-9 by entering the following information in the Additional Information field:
- “COVID-19” as the reason for the physical inspection delay
- “Documents physically examined” and the date of the inspection
- The name of the person who inspected the physical documents
Who verifies Form I-9 documentation?
The individual who verifies an employee’s documentation does not need to be an employee of the company. It can be anyone the employer trusts to carry out Form I-9 responsibilities on its behalf.
This could be a lawyer, public official, or notary public, or anyone designated by the employer.
Since the employer is ultimately responsible for any errors or omissions on the form, it must ensure that individuals authorized to carry out Form I-9 responsibilities know what they are doing. They must understand which documents may be presented by the employee and how to complete the form.
Remote review may return
On July 31, employers must return to the physical inspection of eligibility documents for new hires. The physical documents will need to be reviewed by the employer or the employer’s representative.
The Department of Homeland Security (DHS) notes that remote review could be an option in the future, however.
In August 2022, a proposed rule was issued that would create a framework to allow the Secretary of Homeland Security to authorize alternatives to physical document inspection.
This could include remote review of documents as part of a pilot program or after appropriate security measures are in place.
The DHS has not yet announced a publication date for the rule, but has said that it anticipates publishing a final rule in the Federal Register to implement the proposal for remote document review.
Key to remember: The option for remote inspection of Form I-9 employee documents ends on July 31, 2023, and employers must update forms by August 30, 2023, when remote inspection was used. Employers should watch for the return of remote inspection under a rule to be published in the Federal Register.
