Strategies to Help Employers Update Remotely Completed Forms I-9 by Aug. 30

Employee Benefits

Aug 1

On May 4, 2023, the U.S. Department of Homeland Security (DHS) and the U.S. Immigration and Customs Enforcement (ICE) announced that employers have until Aug. 30, 2023, to complete physical inspection of identity and employment eligibility documents for any employee whose Employment Eligibility Verification form (Form I-9) was completed virtually according to the temporary flexibilities extended during the COVID-19 pandemic. While the COVID-19 flexibility provisions will end on July 31, 2023, the announcement from the DHS and ICE clarifies that employers have until Aug. 30, 2023, to perform all required physical examinations of identity and employment eligibility documents. This means employers now have less than three months to complete physical examinations of employee documents and update all virtually completed Forms I-9 to comply with federal requirements.

Many employers are concerned that the cost and inconvenience of resuming physical inspections of remotely completed Forms I-9 will be overly burdensome and potentially lead to costly errors, especially since they only have a few months to comply with the deadline. Even with the extension, employers must plan ahead for the compliance deadline to avoid mishaps when completing the in-person inspections. This article provides an overview of Form I-9 and COVID-19 flexibility provisions and offers strategies to help employers prepare to update any Forms I-9 completed remotely.

Form I-9 Overview

The Immigration Reform and Control Act of 1986 (IRCA) requires all employers, regardless of size, to hire only individuals who may legally work in the United States. To comply with this law, employers must verify each individual’s identity and employment authorization by completing and retaining Forms I-9.

COVID-19 Flexibility Provisions

Since March 2020, virtual inspections of identity and employment eligibility documents have been permitted in situations where all employees work remotely due to COVID-19 or when a new employee is working remotely due to COVID-19 after April 1, 2021. The DHS and ICE had previously announced that the flexibility provisions would end on July 31, 2023, but employers will now have one additional month to physically inspect identity and employment eligibility documents for employees hired on or after March 20, 2020, and who have received only a virtual or remote examination.

However, since the flexibility provisions are ending on July 31, 2023, employers must follow pre-COVID-19 rules when verifying remote employees’ identity and employment eligibility documents after this date. This means employers—or their authorized representatives—must conduct an in-person, physical examination of remote employees’ documents within three business days of the date they start working.

Strategies to Help Employers Update Forms I-9

Under normal circumstances, complying with Form I-9 requirements can be challenging, and an employer’s failure to properly verify and retain Forms I-9 for all employees can come at a high price. Under the IRCA, employers can be subjected to costly fines for not complying with Form I-9 guidelines, accepting fraudulent documents when verifying an employee’s identity and employment eligibility, and discriminating against individuals based on their citizenship status or national origin. Additionally, Form I-9 violations often can lead to additional fines and penalties from other government agencies.

Now that employers have less than three months to complete in-person examinations of identity and employment eligibility documents that were originally completed remotely, employers should consider the following measures to help ensure they meet the Aug. 30 deadline and comply with Form I-9 requirements.

Establishing A Plan

By creating an action plan, employers can make sure they physically examine employee documents for Forms I-9 that were completed virtually and help avoid potentially costly errors. Organizations can start by identifying all Forms I-9 that will require in-person verification. They can also decide whether in-person inspections will occur at a specific worksite or multiple locations. If an employer uses a vendor for their Form I-9 operations, they should work with it to develop a plan to identify all virtually completed Forms I-9, update those forms and track any progress.

Training Employer Representatives

Employers should train representatives who will be completing the physical inspection of employee identity and employment eligibility documents. Ideally, these individuals would be trained on how to:

Inspect identity and employment eligibility documents
Recognize acceptable employee documents
Update virtually completed Forms I-9

Virtually completed Forms I-9 should have been noted with “COVID-19” in the “Additional Information” field as the reason for the delayed in-person inspection. Employers must update this by indicating “documents physically examined” with the accurate date and name of the person who conducted the in-person verification in Section 2 of Form I-9.

Communicating With Employees

Employers should share their plans with employees, including all deadlines employees must comply with and any consequences for not cooperating. By communicating the in-person verification requirements and their plan for meeting those requirements, employers can set clear expectations with employees. This can help increase the odds of workers complying with their employer’s expectations for completing in-person verifications and updating Forms I-9.

Completing In-person Verifications

Employers must determine who will physically examine employee documents and how such examination will happen. Employers can do this by:

Requiring employees to travel to a business location to present their identity and employment eligibility documents
Having trained employer representatives travel to remote employees to inspect employee documents
Hiring an authorized third-party representative to perform in-person reviews of employee documents

Employers should remember that if they hire third-party representatives to physically inspect employee documents, they must ensure those individuals meet any state or local requirements to serve as authorized representatives. Additionally, employers remain liable for any errors third-party representatives make when inspecting employee documents and completing Forms I-9.

The recent guidance provided by DHS and ICE presumes that the same employer representative who reviewed the documents remotely will also conduct the in-person document review. However, if the employer representative who virtually examined the documents does not perform the physical inspection, the DHS previously advised employers that the representative conducting the physical inspection must complete a new Section 2 of the Form I-9 and attach it to the completed remote inspection Form I-9.

If an employee presents acceptable documents for in-person inspection that are different from the ones presented for remote inspection, the employer can either:

Complete Section 2 on a new Form I-9 and attach it to the Form I-9 used for remote inspection
Provide the document title, number, issuing authority and expiration date (if any) of the new document in the “Additional Information” field of the Form I-9 and notate that the employee presented this document for physical examination

If an employee is no longer working before the physical inspection can be completed, employers should include an explanation in the “Additional Information” box on Form I-9 and the date of the employee’s separation.

Moreover, suppose an employee’s document was valid and unexpired during remote inspection but is now expired during the physical inspection. In that case, employers should not request a new document and can proceed with the physical inspection consistent with DHS guidance.

Future of Remote Verification

The DHS and ICE recently proposed a permanent rule to allow employers to remotely review Form I-9 identity and employment eligibility documents when hiring, reverifying and rehiring employees. If finalized, the proposed rule would allow the DHS to create a framework to authorize alternative options for Form I-9 document examination procedures for some or all employers, according to a Notice of Proposed Rulemaking. The proposed rule would formalize the department’s authority to extend flexibilities, provide alternative options and conduct pilot programs to further evaluate alternative procedures for some or all employers, regardless of whether their employees physically report to work at an employer worksite.

Takeaway

It’s important that employers understand their obligations for completing physical examinations of identity and employment eligibility documents. This can enable employers to establish effective strategies to meet Form I-9 requirements and avoid costly errors.

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Megan Henderson