In March 2020, in response to the COVID-19 pandemic, the U.S. Department of Homeland Security (DHS) temporarily granted employers operating remotely due to the pandemic the flexibility to inspect employee I-9 documentation remotely rather than in person. On July 31, 2023, this temporary flexibility ends, and employers will again be required to physically inspect employee I-9 documents (or, if not feasible, to designate an authorized representative to do so on the employer's behalf). In addition, by no later than August 30, 2023, employers are required to inspect in person the identity and employment eligibility documents of those employees who were hired on or after March 20, 2020 and had their I-9 documentation only remotely examined.
However, in a nod towards the United States' increasingly remote workforce, on July 21, 2023, the DHS announced a new rule that will, effective August 1, 2023, permanently permit qualified employers to virtually inspect remote employees' Form I-9 documentation. To be a qualified employer under this rule, the employer must be enrolled (and in good standing) in E-Verify. Employers that were enrolled in E-Verify during the period in which the DHS temporarily permitted remote inspection and created E-Verify cases for new employees during such period are also permitted to use this new process to satisfy the August 30th verification requirement for such employees.
Alongside this new virtual I-9 inspection process for qualified employers, the U.S. Citizenship and Immigration Services (USCIS) has announced that a new I-9 Form will be available for use beginning on August 1, 2023, which contemplates such remote verification. The new I-9 form also includes other updates and improvements, and must be used by all employers – whether or not they are "qualified" employers under the new rule – beginning November 1, 2023.
While the DHS has indicated that U.S. Immigration and Customs Enforcement (ICE) generally will not focus its enforcement resources on Form I-9 verification violations for failing to complete physical document examination by August 30, 2023, employers are reminded that failure to comply with I-9 verification requirements may result in penalties, including civil penalties ranging from $272 to $2,701 per employee (with higher penalties for knowingly hiring an unauthorized worker) and debarment from government contracts.
The WilmerHale employment group is available to assist employers in reviewing their Form I-9 practices and ensuring their compliance with the law, including as it has recently been updated.
Co-authored with Kavya Madhavpeddi - Summer Associate
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.