Effective July 31, 2023, Department of Homeland Security will be ending the COVID-19 related flexibilities for Form I-9 compliance.
The flexibilities, first announced in March 2020, allowed employers to review an employee's identity and employment authorization documents virtually. Physical inspection of identity and employment authorization documents was to take place in person upon resumption of normal business operations.
The flexibilities were later amended in 2021. Beginning April 1, 2021 employers were required to inspect employees' identity and employment authorization documents in-person only for employees who physically reported to work at a company location on any regular, consistent, or predictable basis. Fully remote employees were exempt from the physical inspection of their documents until they undertook a non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever was sooner.
Immigration and Customs Enforcement (ICE) announced that employers must complete in-person physical inspection of identity and work authorization documents for employees whose documents were inspected remotely during the temporary flexibilities. These in-person physical inspections must be done no later than August 30, 2023.
The physical inspection applies even to companies operating fully remotely or operating with a nationwide remote workforce. So, how can companies with a large remote workforce comply with the physical inspection requirements?
USCIS suggests the use of an authorized representative to fill out the employer's portion of the Form I-9 on their behalf. Authorized representatives may also complete the in-person inspection as needed. Authorized representatives may include personnel officers, foremen, agents or notaries public. An archived USCIS page from 2018 suggests the following for remote hires:
Employers may designate an authorized representative to fill out Forms I-9 on behalf of their company, including personnel officers, foremen, agents or notary public. The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. If an authorized representative fills out Form I-9 on behalf on the employer, the employer is still liable for any violations in connection with the form or the verification process.
When completing Form I-9, the employer or authorized representative must physically examine, with the employee being physically present, each document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. Reviewing or examining documents via webcam is not permissible.
If the authorized representative refuses to complete Form I-9 (including providing a signature) another authorized representative may be selected. If the employer hires a notary public, the notary public is acting as an authorized representative of the employer, not as a notary. The notary public must perform the same required actions as an authorized representative. When acting as an authorized representative, the notary public should not provide a notary seal on Form I-9.
Update as of 7/21/23 -
On July 21, 2023, Department of Homeland Security published a final rule in the Federal Register that recognizes the end of temporary COVID-19 flexibilities as of July 31 and provides DHS the authority to authorize optional alternatives for employers to examine Form I-9 documentation. At the same time, an accompanying document was published describing and authorizing employers enrolled in E-Verify the option to remotely examine their employees' identity and employment authorization documents under a DHS-authorized alternative procedure.
To participate in the remote examination of Form I-9 documents under the DHS-authorized alternative procedure, employers must be enrolled in E-Verify, examine and retain copies of all documents, conduct a live video interaction with the employee, and create an E-Verify case if the employee is a new hire.
Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020 to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023 to satisfy the physical document examination requirement by Aug. 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by Aug. 30, 2023.
Qualified employers able to use the alternative procedure are those in good-standing with E-Verify. If a qualified employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site. However, a qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin.
The alternative procedure is as follows:
1. Examine copies (front and back, if the document is two-sided) of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
2. Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must first transmit a copy of the document(s) to the employer (per Step 1 above) and then present the same document(s) during the live video interaction;
3. Indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable;
4. Retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back if the documentation is two-sided), and;
5. In the event of a Form I-9 audit or investigation by a relevant federal government official, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.
Contact the Law Offices of James D. Eiss today with any questions you may have on Form I-9 compliance.