On May 4^th, 2023, Immigration and Customs Enforcement (“ICE”) announced that the COVID-era flexibilities that allowed remote inspection of many employees’ Form I-9 documents will end on July 31^st, and that employers will have until August 30^th to complete their physical inspection requirements.

Background

The COVID-era flexibilities that allowed some employers to remotely inspect Form I-9 documents are coming to an end effective July 31, 2023. This means that employers who remotely inspected Form I-9 documents must now conduct physical inspections by no later than August 30^th.

The flexibilities, first introduced in March 2020 as businesses went remote due to COVID-19 lock-downs, quarantine and social distancing guidelines, initially relaxed the physical inspection requirement for employers who were operating with a fully remote workforce due to the pandemic. The flexibilities allowed a qualifying employer to remotely inspect the Form I-9 documents via video chat or email. When the Department of Homeland Security (DHS) introduced the flexibilities, it made clear that this was a temporary change in response to the pandemic-era shut-downs and that the flexibility did not originally extend to employers who had hybrid operations or where any employees reported to the physical workplace. Approximately one year later, in March 2021, DHS clarified and expanded the flexibility being offered to employers. Specifically, employers could conduct Form I-9 inspections remotely for employees hired on or after April 1, 2021 who were working exclusively in a remote setting due to COVID-19 precautions (even if other employees had returned to the office).

What This Means

While the flexibilities were in place, employers had a duty to physically examine documents for employees for whom it originally conducted a remote inspection when either normal operations resumed or the employee returned to non-remote work on a regular, consistent or predictable basis. Therefore, many employers have already undertaken to physically inspect the Form I-9 documents for most or all of their employees who were onboarded during the pandemic. However, for employers who have not already physically inspected documents for all employees for which they completed Form I-9’s remotely since March 20, 2020, there is now a fixed deadline for doing so (even if their workforce is and will remain remote). Employers have until August 30, 2023 to ensure that all employees’ documents have been physically inspected, and that their Form I-9’s are updated accordingly. As always, employers may designate an authorized representative to complete the physical inspection and annotate the Form I-9 if they are unable to do so themselves (for example, in a situation where the employee is located remotely or the employer has a high volume of documents to physically inspect).

As discussed in the original flexibility guidance, to document the physical inspection of the Form I-9 documents, employers should: (1) enter “COVID-19” as the reason for the physical inspection delay in Section 2 Additional Information Field and (2) add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9 or to section 3 as appropriate.

What Is Next

The COVID-19 pandemic modified the workplace, and employer’s procedures. While the Form I-9 physical inspection requirements are coming back for now due to the end of the federal COVID-19 Public Health Emergency, DHS has indicated that it will be issuing a Final Rule that should again allow for remote document examinations in the Form I-9 context. However, the timing of the Final Rule is uncertain, and will not be in place before August 30, 2023. Therefore, employers who have not already physically inspected the Form I-9 documents for all employees should put a plan in place to be able to comply by August 30, 2023.

If you have questions or need advice about how to implement these new requirements, please contact us.

• Mary P. Snyder (msnyder@wilsonturnerkosmo.com)
• Jennifer B. Solano (jsolano@wilsonturnerkosmo.com)

Wilson Turner Kosmo’s Special Alerts are intended to update our valued clients on significant employment law developments as they occur. This should not be considered legal advice.