United States: COVID-19-Related Form I-9 Flexibilities End On July 31, 2023

Key Takeaways:

• During the COVID-19 pandemic, Department of Homeland Security ("DHS") temporarily exempted employers from physically inspecting Form I-9 documents.
• DHS' COVID-19-related exemption will end on July 31, 2023. As such, beginning on July 31, 2023, employers will no longer be permitted to inspect Form I-9 documents remotely.
• Additionally, by August 30, 2023, employers must physically inspect all Form I-9 documents for employees who previously received remote inspection under the COVID-19-related exemption.

When hiring employees, employers must verify employees' identities and employment authorizations and record their verification on Form I-9. Federal law requires that employers complete Section 2 of the Form I-9 by physically inspecting, in the employees' presence, documents establishing the employees' identity and employment authorization. However, on March 20, 2020, when states issued stay-at-home orders and employers implemented remote work due to the COVID-19 pandemic, DHS announced flexibilities allowing a temporary exemption on the physical inspection requirement for employers operating remotely. DHS permitted employers to, instead, inspect Form I-9 documents remotely through video call, fax, or email. Under the COVID-19-related flexibilities, employers only had to physically inspect Form I-9 documents once: (1) employees started working in person on a "regular, consistent, or predictable basis" or (2) the temporary exemption ended, whichever came first.

However, COVID-19-related flexibilities will sunset on July 31, 2023. Accordingly, starting on July 31, 2023, employers hiring new employees can no longer remotely inspect employees' Form I-9 documents. Instead, employers must resume physically inspecting, in the employees' presence, all new employees' Form I-9 documents. Additionally, by August 30, 2023, employers must physically inspect Form I-9 documents for employees who were hired on or after March 20, 2020 and whose Form I-9 documents received only remote inspection.

Employers can take steps now to ensure they are well-positioned for the August 30, 2023 compliance deadline. First, employers should adjust their Form I-9 protocols to ensure they return to physically inspecting Form I-9 documents beginning on July 30, 2023. Second, employers should audit their Form I-9, paying particularly close attention to employees who were hired on or after March 20, 2020. For employees hired on or after March 20, 2020 whose documents were inspected remotely, employers should ensure that the remote inspections are accurately noted. When completing remote verifications, employers should write in the "Additional Information" box on Section 2 that they remotely inspected Form I-9 documents and the date of the remote inspection. For employees who initially worked remotely but later worked in person on a "regular, consistent, or predictable basis," employers should ensure they have physically inspected the employees' Form I-9 documents.

Further, employers should identify all employees who received remote inspection under the COVID-19-related exemption and did not receive a subsequent physical inspection. Employers should make plans to physically inspect these employees' Form I-9 documents by August 30, 2023. When completing such physical inspections, employers should write in the "Additional Information" box the date of the physical inspection and the name of the staff member who physically inspected the Form I-9 documents. If the staff member completing the physical inspection is the same staff member who completed the remote inspection, the staff member should write in the "Additional Information" box the date of the physical inspection and their initials. If the staff member completing the physical inspection is not the same staff member who completed the remote inspection, then the staff should write in the "Additional Information" box the date of the physical inspection, the staff member's full name, and the staff's title.

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