The Department of Homeland Security (DHS) has announced that they are once again requiring a physical, in-person inspection of all employee's I-9 documents. Before the deadline of August 30, 2023, all employers must ensure that all employees have had an in-person inspection of their I-9 documents and that the date of the physical inspection is recorded in their I-9. Employers who are not fully compliant with this requirement may face significant fines.
The requirement for in-person verification, the policy since 1986, had been temporarily suspended in March of 2020 to accommodate the surge of remote work caused by the COVID-19 pandemic. In place of the in-person inspection, employers were allowed to conduct remote, virtual reviews of employee identity documents. These policies were extended several times, but DHS and the U.S Immigration and Customs Enforcement (ICE) have clarified that these flexibilities are being sunset on July 31, 2023, and all employers must have physically reviewed all employee submitted identity and authorization documents on their I-9.
What is changing?
As of July 31, 2023, Form I-9 Employment Eligibility Verification requires that
- An employee completes Section 1 no later than the first day of employment.
This requirement is not changing and remains in place.
- The employer completes Section 2 within three business days of their employee's first day of employment
From 20 March, 2020, to July 31, 2023, this requirement was able to be satisfied via a remote inspection with the understanding that there must be a physical inspection of the Section 2 documents performed and recorded in the "Additional Information Field" within 30 days of July 31, 2023.
- The employer physically examines their employee's documents
This requirement was temporarily relaxed during the March 20, 2020 – July 31, 2023, allowing for employers to conduct remote and virtual inspections of employee I-9 documents. As of July 31, 2023, all employers must physically inspect their employee documents and record the physical examination in the I-9, regardless of hiring date.
Fully remote employees
If some of your employees work fully remote from a distance that makes it impractical for them to bring their identity documents physically to your location, you can authorize an agent to inspect the documents on your behalf. The laws governing this will vary from state-to-state, certain states allow notaries to inspect the documents on behalf of an employer, and there are certain vendors who offer authorized agent services, although their quality can vary.
It is important that all employers take immediate action to become compliant with these new regulations. While a review of all employee's I-9 may seem like a large effort to complete, there are some procedures that can help simplify the process. A suggested path to reach compliance would be to complete the following steps:
- Create a list of all of the company's new hires from March 20, 2020 to date. Pull all of their I-9s and determine which ones had their documents verified remotely. ALL employees verified remotely would need to either come in person to the designated office location for the employer, or an authorized agent, in order for the authorized agent/company employee to verify the documents. Section 2 should be updated with a notation in the Additional Information Box: "Original documents viewed in person on x date" with their signature.
New I-9 Form: USCIS also announced that they will issue a new version of the Form I-9 on August 01, 2023. Among the improvements to the form is a checkbox employers enrolled in E-Verify can use to indicate they remotely examined identity and employment authorization documents under an alternative procedure authorized by the Department of Homeland Security (DHS) described below.
Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020 to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023 to satisfy the physical document examination requirement by Aug. 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by Aug. 30, 2023
The revised Form I-9 (edition date 08/01/23) will be published on uscis.gov on Aug. 1, 2023. Employers can use the current Form I-9 (edition date 10/21/19) through Oct. 31, 2023. Starting Nov. 1, 2023, all employers must use the new Form I-9.
All employers must have recorded physical inspections of employee I-9 documents before the August 30, 2023 deadline, or be exposed to significant fines. These requirements apply to all employees, regardless of whether they work in-person or remotely.
Please ensure that you are using the correct version of the Form I-9 for employees starting work on or after November 01, 2023.
Recommended action for employers:
We also highly recommend ALL employers conduct an annual independent I-9 inspection to review all files for employees onboarded during the prior calendar year. This practice allows you to identify and rectify any mistakes; learn from those errors and maintain compliance.
Originally published 24 July 2023.
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.