Frequently Asked Questions (FAQs) About I-9 Compliance Flexibility Ending on July 31, 2023

Frequently Asked Questions (FAQs) About I-9 Compliance Flexibility Ending on July 31, 2023

Completing a Form I-9 is a standard part of any employee onboarding process.  Recognizing that many employees worked remotely during the COVID-19 pandemic, the federal government has allowed flexibility in the I-9 document review process. However, the government recently announced that the Form I-9 COVID-19 flexibility policy will end on July 31, 2023, and employers have many questions. We provide answers to many of the most commonly asked questions below.

FAQs About I-9 Compliance Flexibility Ending

What is the policy that is ending?

U.S. Immigration and Customs Enforcement (ICE) first announced its I-9 flexibility policy in March 2020 for workplaces operating remotely due to the COVID-19 pandemic, and ICE has extended the policy numerous times.  The policy originally stated that employers would not be required to inspect I-9 documents in the physical presence of employees until the resumption of “normal operations,” and that employers instead would be allowed to review such documents virtually.  Even under the flexible policy, employers have been required to inspect the documents remotely (e.g., via Zoom, Teams, email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing the I-9.

When is the policy ending?

On May 4, 2023, ICE announced that the temporary COVID-19 accommodations for Form I-9, Employment Eligibility Verification, will expire on July 31, 2023. Employers that have been relying on the temporary policy to remotely inspect I-9 documents will have up to thirty (30) additional days after the July 31 sunset of the COVID-19 flexibilities policy to complete in-person inspections of documents that have only been reviewed remotely. 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.

Is the key date July 31, 2023 or August 30, 2023?

Both dates are key.  July 31st is the last date that employers can rely on the I-9 flexibility policy to perform remote inspections. With the COVID-19 flexibility policy coming to an end on that date, DHS is also encouraging employers who have been using those temporary flexibilities to plan ahead to ensure that all required physical inspection of identity and employment eligibility documents is completed by August 30, 2023. This applies to employees hired on or after March 20, 2020 who have received a virtual or remote examination of documents under the flexibilities policy.

I have heard there is an exception for employers who use E-Verify. Is that true?

Yes, employers enrolled in E-Verify may be able to take advantage of an alternative process. That process is explained in detail in a recent MEA alert.

What should employers be doing now?

To the extent that they have not yet done so, employers should begin physically reinspecting Section 2 documents for any employees whose documents have only been reviewed virtually since March 2020. These verifications must be completed no later than August 30, 2023, based on ICE’s announcement.

Who can perform the document inspections?

Moving forward, 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 (which could create its own problems);
  • A designated agent (like a notary); or
  • A third-party agency hired by the employer.

The employer will remain liable for errors or omissions on the form, regardless of who completes it, which is why utilizing a family member (who may have an inherent conflict of interest) could prove to be problematic. 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. 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.

How do we note the follow-up, in-person inspection on the Form I-9?

ICE’s guidance on this issue can be found here.

What about utilizing MS Teams Video/Zoom where we can physically see the person/documents?

ICE has said that this is insufficient.  The employer must conduct an in-person review of the documents. 

What if the document that originally was presented to support the I-9 (such as a passport) is now expired?

ICE has offered guidance saying that, in most cases, as long as the documents presented were unexpired at the time they were presented for remote inspection, it is not an issue that they are now expired.  The employee does not need to present new, unexpired documents.

What if the employee does not have the now expired documents in their possession? 

The employee should be asked to present other, acceptable documents for in-person inspection.  In such a case, the employer can complete Section 2 on a new Form I-9 and attach it to the Form I-9 used for remote inspection.

How do we handle employees who were hired during the pandemic time that have since terminated?

Make a notation on the I-9 to that effect.  The documents obviously are not going to be available to you for inspection.

We have had turnover in our HR department. The individuals who reviewed I-9 documentation during the pandemic are no longer with the company, and there is nothing noted on the I-9 forms to show whether the documents were reviewed in person or virtually. What should we do?

Taking a conservative approach, do everything you can to determine if an employee’s documents were reviewed in person or virtually.  For example, in a manufacturing environment, where employees were coming to work on a regular basis, it seems extremely likely that I-9 supporting documents were reviewed in person.  By contrast, in an office-based environment, where employees were hired throughout the country to work virtually, and those employees have not visited a company office, it seems extremely likely that I-9 supporting documents were reviewed remotely and should be reinspected in person now.

How much do we really have to worry about this?  What If we start the process of physical inspection, but still have some outstanding at the August 30, 2023 deadline and get audited? 

While we cannot predict with certainty what may happen in that situation, keep in mind that the fine for I-9 paperwork deficiencies – even if the employee ultimately has the legal right to work in the United States – can be $272 to $2,701 per form.​

What if an employee refuses to meet for a physical document inspection? Must we terminate this employee, or can we add a memo to the file indicating that we remotely examined the employee’s documents but were not able to complete physical inspection?

An employer cannot retain an employee who the employer knows is not authorized to work in the United States or that does not fulfill Form I-9 documentary requirements. This includes presenting documentation for in-person physical examination. Employers are required to complete Form I-9 for all new hires, including the requirement to physically examine identity and work authorization documents.

Have the rules for retaining I-9 Forms changed at all?

No.  More information on I-9 record retention requirements can be found here.

Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding these issues. For additional information regarding immigration/I-9 issues, the Hotline is available to provide this assistance to all MEA Members. For MEA Essential and Premier members, a Member Legal Services attorney is available for additional consultation. MEA members can reach out to Christopher Thorn, Chair of the Immigration Practice at Buchanan Ingersoll & Rooney PC at christopher.thorn@bipc.com.

About the Author

Amy McAndrew is MEA’s Director of Legal and Compliance Services and has over twenty years of experience as a labor and employment attorney.

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