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.
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.