Employers with remote workforces should take note that they will need to begin physically inspecting new hires’ I-9 documentation again as of August 1, 2023 – and they will need to conduct a physical inspection of employees’ documents that were only virtually inspected during the COVID-19 pandemic.
The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced earlier this month that employers will have 30 days to reach compliance with Form I-9 requirements after the “COVID-19 flexibilities” sunset on July 31, 2023.
The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) regulations require that Employment Eligibility Verification (Form I-9) under Section 274A of the INA be inspected. Pre-pandemic, it was essentially a given that this inspection would occur in person. When employers perform those inspections remotely (e.g., over video link, fax or email, etc.), they must obtain, inspect, and retain copies of the identity and employment eligibility documents listed on Form I-9, Section 2 (the “Section 2 documents”) within three business day of hire. In the Additional Information field, employers were directed to indicate “documents physically examined” and the date of inspection.
Pandemic-Related Suspension of Physical Inspection
In March 2020, due to the COVID-19 pandemic and the fact that many workplaces went mostly or fully remote, ICE temporarily suspended the requirement that Section 2 documents be “physically” inspected, in person, in the presence of the employee. The in-person inspection requirement was deferred, until “three business days after normal operations resumed”.
Then, for new hires after April 1, 2021, it was announced that the requirement that employers inspect employees’ Section 2 documents in-person would only apply to those employees who physically report to work at a company location on any regular, consistent, or predictable basis. (In other words, there was no change to normal requirements for employees physically present at a work location).
If employees hired on or after April 1, 2021, worked exclusively in a remote setting due to COVID-19-related precautions, they were temporarily exempt from the physical inspection requirements. The temporary exemption ended when the employee resumed non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.
Physical Inspection Required within 30 Days after July 31, 2023
The end of the pandemic related flexibility was announced in May 2023. A physical inspection of the documents that were, during the pandemic, only virtually inspected, now must take place within 30 days after the flexibilities end on July 31, 2023.
Employers should schedule examination meetings with their remote workers as soon as possible, on or before August 30, 2023. The person who inspects the documents should add the words “COVID-19,” the date of the physical inspection, and the name of the person who conducted it in the Additional Information field.
Employers who have moved to a largely permanent remote workforce may be wondering how to practically conduct physical inspections for their far-flung employees. However, this should present only a minimal hassle. An employer may designate an “authorized representative” to complete Section 2 or 3 of Form I-9 on behalf of the company. This can include human resource personnel, job forepersons (such as field production managers), agents or notary publics. For employees who work fully remotely from locations very distant from any company offices, going to their local notary public office may be the most practical solution.
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 completes Form I-9 on behalf of the employer, the employer is still liable for any violations in connection with the form or the verification process.
The same procedures apply to employees whose I-9 documents were reverified virtually. So, those reverification documents will need to be inspected physically. As with Section 2 updates, when updating Section 3, the inspector should write “COVID-19” in the margin or annotate in the additional information field.
For the routine, deferred physical inspections, employers should not create a new E-Verify case for the employee, nor should they update the existing E-Verify case, in connection with this physical inspection.
What if the New Documents Do Not Match?
According to DHS, If the employee presents original documents for in-person inspection that are different from the ones presented for remote inspection because the employee has a different immigration or U.S. citizenship status, and they may no longer have the original document presented for remote inspection, then the employer may either:
- Complete Section 2 on a new Form I-9 and attach it to the Form I-9 used for remote inspection; and notate that the employee changed their immigration status in the Additional Information field; or
- Provide the document title, document number, issuing authority, and expiration date (if any) of the new document and notate that the employee changed their immigration status in the Additional Information field.
DHS recommends option 1.
Employers may find that the forms they are reviewing and updating, contained errors. To correct the form:
- Draw a line through the incorrect information.
- Enter the correct information.
- Initial and date the correction.
If there are multiple, or major, errors on the form, the inspector may redo the section on a new Form I-9 and attach it to the old form. A note should be included in the file regarding the reason for the changes to an existing Form I-9 or why the new Form I-9 was completed.
Do not conceal any changes made on the form (other than simple notation errors when copying document information). Doing so may lead to increased liability under federal immigration law.
Note that from May 1, 2020, and April 30, 2022, employees were temporarily permitted to present an expired List B document. If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers were required to update their Forms I-9 by July 31, 2022. Employers who did not do so, should take this opportunity to obtain an updated List B document.
Can Employees Refuse?
No. Employers cannot employ employees in the United States without completing the employment verification process and the Form I-9. The requirement to physically inspect documents has been around for as long as the Form I-9 itself. Employees hired since March 2020 are simply completing a government-mandated process that they would have had to complete within 3 business days of hire, pre-pandemic.
Proposed Rulemaking – Alternative Inspection?
In recognition that many workforces have gone remote and never looked back, there are proposed rules in the works that would enable employers to use alternative inspection means going forward. DHS anticipates a final rule to be published by year-end 2023.