Department of Homeland Security to sunset COVID-19 form I-9 flexibilities

At a glance

With the upcoming sunset of the COVID-19 Form I-9 flexibilities, employers will have until 30 August 2023 to comply with in-person Form I-9 verification requirements for employees who were hired during the COVID-19 pandemic and who were subjected to virtual verification.

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Specifically, pursuant to the latest guidance from the US Department of Homeland Security (DHS) and US Immigration and Customs Enforcement (ICE), employers have until 30 August 2023 to perform all required physical examinations of identity and employment eligibility documents for those individuals hired on or after 20 March 2020, and whose documentation has only been subject to a virtual or remote examination under the COVID-19 flexibilities.

COVID-19 form I-9 flexibilities

COVID-19 flexibilities were first announced in March 2020 and were extended multiple times throughout the COVID-19 pandemic. The flexibilities temporarily permitted virtual or remote verification of Form I-9s for remote employees until such employees undertook non-remote employment on a regular, consistent, or predictable basis or until such flexibilities expired.

With the expiration of these flexibilities as of 31 July 2023, DHS is encouraging employers who have inspected Section 2 I-9 documentation remotely to ensure that all required physical inspection requirements are completed by 30 August 2023. Employers should review previously issued notation guidance for completing a subsequent physical inspection following a remote inspection.

Of note, DHS has made no exception for employers that continue to operate remotely or that onboard employees remotely. For employers using E-Verify, DHS has indicated that businesses should not create a new E-Verify case for an employee, nor should they update the existing E-Verify case, in connection with this physical inspection.

A proposed rule that would, in part, provide for alternative inspection procedures for employment eligibility documents was published in August 2022, and the public comment period closed on 17 October 2022. Although DHS appears poised to publish a final rule in the Federal Register later this year, employers may not rely on this rule in connection with their compliance with the in-person verification requirements for Form I-9s.

Key takeaways for employers

Employers should develop a plan to ensure that physical inspection of employment eligibility documents for individuals hired on or after 20 March 2020, and whose documentation has only been subject to a virtual inspection, is completed by 30 August 2023. In connection with such in-person, physical inspection, employers may wish to utilise third-party agents as authorised representatives with regard to the verification process for remote employees and/or employees residing in states (or localities) in which the employer does not have a physical office. Notably, authorised representatives do not require any particular qualifications, licensing, knowledge, experience or affiliation with the employer. Employers commonly utilise notaries for this process. However, employers may designate anyone to act on the company’s behalf in connection with completing the employer’s Form I-9 section 2 responsibilities. Regardless of the identity of the authorised representative, the employer remains responsible for the proper (and accurate) completion of the Form I-9 and is liable for any errors or omissions.

• Employers should review and update, as needed, internal I-9 policies to ensure compliance with employment eligibility verification requirements.
• Employers should continue to monitor for any procedural changes to examination of identity and employment eligibility documents under Form I-9 should a final rule be published later this year.

Should you have any questions please contact one of the authors or your DLA Piper relationship attorney for more information.