ICE, DHS to End Remote Form I-9 Verification Flexibilities

On May 4th, 2023, U.S. Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) reminded employers that remote Form I-9 verification flexibilities will officially end on July 31st, 2023. Employers will have 30 days from that date to reach compliance. This means that, by August 30th, 2023, employers must verify in person all employees that were previously verified virtually since March 2020. The announced date ends three years of extensions for the remote Form I-9 verification flexibilities. ICE last extended flexibilities for Form I-9 remote verification in October 2022.

Background of the Remote Form I-9 Verification

In the midst of COVID-19 precautions implemented by employers and employees, the DHS introduced Remote Form I-9 Verification in March 2020. In brief, the agency exercised discretion to defer physical presence requirements associated with any Form I-9 inspections after that date. Therefore, when employers received and reviewed Form I-9 documents, the items would not need to be physically present. This temporary policy change only applied to employers and workplaces operating remotely. In contrast, employees who were physically available were not eligible under the extension.

Performing In-Person Form I-9 and Document Inspections

As remote Form I-9 verification flexibilities end, employers have until August 30th, 2023, to perform physical verifications of identity and employment eligibility documents for individuals that only received these inspections remotely on or after March 20th, 2020. To meet the August 30 deadline, employers should do the following:

1. Identify which Forms I-9 were inspected remotely and require updates.
2. Notify your employees about upcoming physical inspections, what documentation is required, the timeline of compliance, and the consequences of not cooperating.
3. Plan a location for physical inspections or use an authorized representative. An authorized representative can be any person an employer designates to complete and sign Form I-9 on their behalf. However, the employer is still liable for any violations in connection with the form or the verification process.
4. Train authorized representatives conducting physical inspections so that they understand the Form I-9 process and refer to the U.S. Citizenship and Immigration Services’ (USCIS’) List of Acceptable Documents.
5. Perform in-person inspections and physically update Forms I-9.
6. Update any expired List B documents.
7. Track when updates to Forms I-9 are completed.
8. Verify that all records are in order and assess company-wide Form I-9 compliance.

Updating Forms I-9 Physically

Once the employer or authorized representative has physically verified an employee’s acceptable documents, they must add “documents physically examined,” the date they examined the documents, and their initials to the Section 2 (or Section 3 where appropriate) Additional Information field on Form I-9. If the individual who performs the physical verification did not also perform the remote Form I-9 verification, they must provide their full name and title along with the date of the physical examination in the Additional Information field. Employers that use electronic Forms I-9 should consult experienced legal counsel to ensure full compliance.