U.S. Immigration and Customs Enforcement (ICE) announced that employers have an additional 30 days to bring their I-9s into full compliance after the July 31 sunset of the COVID-19 flexibilities policy.
The end of the remote flexibilities policy also means that for any employee hired on or after August 1, 2023, employers must complete a physical inspection of the documents presented for the I-9 process, even if the company is 100 percent remote.
Since March 2020, employers have been temporarily exempt from the physical inspection requirement of remote employees’ documents required for the I-9 process. The policy required that employers undertake a physical inspection of the affected employees’ I-9 documents when those employees return to in-person work on a “regular, consistent, or predictable” basis or when ICE terminates the remote inspection policy, whichever is sooner. (Note: Employers who availed themselves of the remote option were instructed to provide written documentation of their remote onboarding and telework policy for each employee. Per the government, this burden rests solely with employers.)
For employers who have already initiated a return to office on a regular basis, even for part of their workforce, the remote flexibilities granted by ICE’s policy no longer apply and employees onboarded remotely since April 1, 2021, need to have their Section 2 documents physically reinspected by an authorized representative.
For the past two years, many employers may have operated under the mistaken assumption that they could remotely inspect documents presented by all new employees remotely, regardless of whether they had some employees reporting into an office on a regular basis.
To the extent that they have not yet done so, employers should begin physically reinspecting Section 2 documents for employees who report into the office on a regular basis as soon as possible.
These verifications must be completed no later than August 30, 2023, based on ICE’s announcement. Employers should also seek counsel on reverifying documents for the part of the workforce hired since April 1, 2021, if physical document reviews were not completed.
Next Steps for Employers
Employers should take the following actions to ensure I-9 compliance by the August 30 deadline:
Identify Noncompliant I-9s and Conduct Any Outstanding Physical Inspections Before August 30, 2023
Update Form I-9 for each affected employee by annotating the “Additional Information” box located in Section 2 of the form, as follows:
- Once the documents have been physically inspected, the employer should 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. The notation should indicate both when remote inspection was completed and when the employee’s documents were physically inspected, as well as include the initials of the authorized representative who completed the physical document inspection.
- USCIS has recently issued updated FAQs providing examples of how to annotate the additional information field on the I-9 form. Don’t forget to include any I-9s where reverifications occurred during the remote flexibilities policy. These should also be annotated in the additional information field.
Prepare an I-9 Memo for Any Uninspected Employee Documents
Employers should create a memo to the I-9 file for any employees whose documents could not be physically inspected by the August 30 deadline (such as when the employee’s employment ended prior to the physical inspection of the I-9 documents), or for whom the I-9 was not properly completed during remote inspection.
The memorandum may be brief, but should detail the employee’s remote work status at the time of hire, when and how the employer remotely verified their identity and employment eligibility documents, when the employee’s documents are being physically inspected, any changes in the documents or status, or in the alternative, why they could not be reinspected.
Resume Physical Inspection of I-9 Documents as Soon as Possible, but No Later Than August 1, 2023
Starting August 1, 2023, employers are required to inspect physical documents for all employees regardless of their remote or hybrid work status. For fully remote employees, employers may take one of several approaches to complete physical verification.
ICE has confirmed that anyone the employer designates may be an “authorized representative” for completing Section 2 and the physical document inspection. This could include:
- A member of the employee’s household
- A designated agent (like a notary); or
- A third-party agency hired by the employer
employer will remain liable for errors or omissions on the form, regardless of who completes it. Employers who use this verification method should prepare instructions for their designees and be available to answer questions from the agent during the verification process.
Review the completed I-9s
Employers should also review the completed I-9 as soon as possible so any errors can be corrected before the employee’s fourth day of employment, thereby reducing any potential liability.
As a reminder, Section 1 of the I-9 must be completed and signed by the employee no later than the first day of employment.
The list of acceptable documents should be provided to the employee at that time so the employee can select either one List A document that establishes both identity and employment eligibility, or a combination of a List B (identity) and List C (employment eligibility) document.
Section 2 must be completed by the employer, or a designated representative, within three days of the employee’s first day of work. Section 2 requires employers to physically inspect the employee’s original identity and employment eligibility documents.