The temporary Form I-9 flexibilities issued by the U.S. Department of Homeland Security (DHS) will come to an end on July 31, 2023. Under the Form I-9 flexibilities, employers with employees taking physical proximity precautions due to the COVID-19 pandemic were allowed to temporarily defer physical examination of employees’ identity and employment authorization documents. Instead, employers could examine the employees’ documents remotely (e.g., over video link, fax, or email) and enter “COVID-19” as the reason for the physical examination delay in the Section 2, “Additional Information.”
The most recent version of the Form I-9 flexibilities allowed employers to continue to use remote I-9 verification until employees began non-remote employment on a “regular, consistent, or predictable basis,” or until the flexibilities expire on July 31, 2023 – whichever is earlier. Afterwards, the employer would be obligated to conduct an in-person, physical examination of the employees’ identity and employment authorization documents within three business days.
On May 4, 2023, DHS and U.S. Immigration and Customs Enforcement (ICE) announced that employers will have an additional 30 days to reach compliance with Form I-9 requirements after the Form I-9 flexibilities expire. Employers will have until August 30, 2023, to perform all required physical examinations of identity and employment eligibility documents for those individuals hired on or after March 20, 2020, and who have only received a virtual or remote examination under the flexibilities. Inspections of the physical documents must be performed in person by either the employer or an authorized representative for the employer. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
