August 29, 2023

COVID-19 flexibilities have ended, ushering in the return of in-person employment eligibility verification (Form I-9). As such, the grace period provided by the U.S. Immigration and Customs Enforcement (ICE) will soon end. This upcoming deadline will give employers little time to comply with I-9 regulations.

These flexibilities resulted from the Department of Homeland Security’s (DHS) assistance when the COVID-19 pandemic took hold of the world. They empowered employers to operate remotely where possible. However, the pandemic made it challenging to verify workers’ Form I-9s in person. Thus, the flexibilities temporarily allowed employers to review I-9 documents remotely.

Because these flexibilities ended on July 31, 2023, employers faced significant challenges when trying to verify I-9 documents for employees still working remotely. Further issues arose as other employees struggled to provide acceptable documentation, such as documents that had not expired. As such, ICE provided employers with a grace period to address these difficulties.

However, this grace period will end on August 30, 2023. ICE expects employers to complete their inspections and verifications for each employee or face penalties for noncompliance. As such, the agency urges employers to start or ensure they have completed the necessary verifications.

Fortunately, the DHS has answered various questions concerning the grace period, potential flexibilities that recently became permanent, and the new Form I-9. For example, the DHS reminded affected employers that they may use authorized representatives to complete the in-person review. These representatives may complete Sections 2 or 3 on the employer’s behalf.

Unfortunately, the permanent flexibilities for verifying employment eligibility are available only for employers registered and in good standing with E-Verify. As such, employers joining E-Verify now will not gain the ability to verify I-9 documentation remotely. All other employers must physically review the I-9 documentation previously inspected via the temporary remote flexibilities. 

Once completed, they should annotate the “Additional Information” field in Section 2 or 3 as appropriate with “COVID-19.” Either area must also include the signature of the inspector and the date inspected. This step should also mention “documents physically examined” in some way.

Some cases may have an employee presenting different documentation from what they used in the original inspection. This change may occur because they lost the original documents, forcing the employee’s hand. As such, employers should complete a new Section 2 and attach it to the original Form I-9.

Employees may present the original documents even when they have expired. This option is acceptable if it did not lapse before the initial remote inspection. As such, they may continue the physical review as expected.

Employers enrolled and in good standing in E-Verify may remotely inspect their employees’ Form I-9s. However, they can choose to review the documentation in person instead. Employees may also refuse an alternative verification process in favor of an in-person review. Regardless, employers interested in maintaining alternative procedures should review the Federal Register notice recently published by the DHS.

To help keep up with these challenges, employers should consider integrating an electronic I-9 management tool into the employment eligibility verification process. This tool can provide step-by-step guidance, helpful reminders, and electronic storage of forms and documentation.

Automate your employment eligibility verification today with the ensured compliance of I-9 Compliance.

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