COVID-19 Flexibilities for I-9 In-Person Document Inspections Extended to July 31, 2023, but Physical Inspections of Remotely Verified Documents Must be Completed and Documented by August 30, 2023

Work Authorization Background

Federal law requires employers to perform in-person inspections of new employees and their documents (as well as current employees with expiring Employment Authorization Documents (EADs) to verify that they are authorized to work in the United States. Employers must fully and accurately complete a Form I-9, Employment Eligibility Verification, when they inspect the employee’s documents, within three business days of a new hire’s first day of employment (or upon the expiration of a current employee’s EAD.) Beginning in March 2020, though, employers were permitted to perform virtual, remote Form I-9 verifications and document inspections for employees working remotely due to COVID-19.

U.S. Immigration and Customs Enforcement (ICE) has extended to July 31, 2023 its COVID flexibility rule allowing virtual, remote Form I-9 verifications and document inspections instead of in-person inspection and verification of remote workers and their documents. In-person verification of the work authorization documents has still been required as soon as remote workers return to the office full-time or in a hybrid office and remote model.

ICE Extends to August 30 the Deadline to Complete In-Person Inspection And Verification Of Remote Workers Screened under the COVID Flexibility Rule

On May 4, 2023 ICE announced that the deadline for employers to get into compliance with I-9 requirements and complete in-person physical document inspections for employees whose documents were inspected remotely during the temporary COVID flexibilities is August 30, 2023. These in-person document inspections must be performed by August 30, 2023 for all employees hired or reverified in or after March 2020 who only received a virtual or remote examination under the COVID-19 flexibilities. When in-person physical document inspections are done, the employer can use the original Form I-9 used for remote verification and indicate COVID-19 in Section 2 for the physical examination delay. Employers should then add “documents physically examined” with the date of the in-person physical examination to the Section 2 Additional Information field, or to Section 3, as appropriate. (See ICE Newsroom).

Take Action Now

Review your Form I-9 records now for compliance before the August 30, 2023 deadline to create a list of employees who were hired or reverified since March 2020 and now require physical inspection of their work authorization documents. Ensure that physical document inspections have already been completed for all employees who returned to in-person work since March 2020 under normal conditions, and for those physically reporting to work at a company location on any regular, consistent or predictable basis. If physical document inspections have not been completed for employees who have already returned to the office, include those employees on your list to review by August 30, 2023. Form I-9 must be completed fully and accurately to avoid any issues if an audit is conducted by ICE or the DHS. If you need help reviewing your completed Form I-9 documents or learning about best practices on completing the Form I-9 verification process before you are subject to an audit, we are available to assist you.

For more information regarding I-9 deadlines or compliance, please contact Patrick W. McGovern, Esq., Partner of the firm’s Labor, Employment and Immigration practice via email here, Judith R. Kramer, Esq. via email here, or call 973.535.7129.