May 22 Tip of the Week

“I-9 and the End of COVID”

     

The federal emergency regarding COVID has ended and, as a result, a number of benefits and exceptions that existed as part of that health emergency have also ended.  One area where this may be significant to a large number of employers is in the completion of an employee’s I-9 form which confirms the employee’s authorization to work in the United States.  During the COVID emergency, when many employers went to a fully remote workforce, the United States Immigration and Customs Enforcement (“ICE”)  and the Department of Homeland Security (“DHS”) implemented a new rule which allowed employers who were working fully remotely to electronically review an employee’s work authorization documents for purposes of completing the I-9 form. 

            On May 4, 2023, ICE and DHS announced that the flexibilities permitting remote Form I-9 identification inspections would expire on July 31, 2023.  The end of these flexibilities means that employers who virtually inspected an employee’s documentation must now confirm the validity of those documents through an in person inspection.  The time to conduct the in person inspection has been extended to August 30, 2023 – essentially a 30-day period for employers to complete this responsibility.  It is important to note that the flexibilities granted by ICE and DHS were intended to be used only by employers who were working wholly remotely and did not maintain an in person worksite during the COVID emergency.  Here is a link to the initial announcement of these flexibilities:  https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance.  With the expiration of the COVID emergency, employers who have fully remote workplaces will need to return to the in person inspection of worker authorization documents and must be prepared to do so. 

            What does this mean for employers?  First, employers should begin the process of conducting an in person inspection of all I-9 forms and supporting documentation now so that they are able to meet the August 30, 2023 deadline for the confirmation process.  Once an employer has physically inspected the identification documents provided by an employee, the employer should enter the following information in the Additional Information section of the I-9 form: (1) COVID-19; (2) Documents physically examined; (3) the date of the physical examination; and (4) the name of the person who conducted the examination.  ICE has provided sample mockups of how these physical inspections should be documented: 

https://www.uscis.gov/sites/default/files/images/article-i9-central/USCIS_Physical-Inspection-Reverification_760%402x.png.  If an individual presents different documents during the physical inspection from what was initially provided during the remote inspection, the employer’s representative should complete Section 2 on a new I-9 form and attach it to the I-9 form used during the remote inspection.  If an employee’s documentation is expired, the employer must confirm that the documents were unexpired at the time that they were submitted for remote inspection.  If an employee has since separated from service and a physical inspection is not possible, the employee’s separation and date of separation should be noted in the additional information section of the I-9 form.