The Department of Homeland Security (DHS) is reminding employers that the temporary policy that allowed employers to inspect Form I-9 documents remotely in certain situations related to COVID-19 will end on July 31, 2023. DHS also announced that employers will have until August 30, 2023 to perform all required in-person/physical examinations of I-9 documents for those individuals who have only received a virtual examination.
The Details
Background
The Form I-9 includes multiple sections:
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SectionName
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Section Overview
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Completion Deadline
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Section 1
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Employee must attest that they are authorized to work in the U.S.
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The employee's first day of work for pay
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Section 2
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Employee must present certain identity and work authorization documents. The employer must examine the document(s) to determine whether they reasonably appear to be genuine and relate to the employee. Employers must record the document details here.
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Within 3 business days
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Section 3
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If an employee's employment authorization expires, they must present new or updated document(s) and the employer must examine and record the document number(s) here. Employers may also complete this section when an employee is rehired within 3 years of the date that Form I-9 was originally completed and when an employee has a legal name change.
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No later than the date employment authorization expires
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Employers must generally inspect original Section 2 documents in the employee's physical presence. However, due to the pandemic, DHS had offered employers some flexibility and previously announced a temporary deferral of this requirement. Instead, employers have been permitted to review documents virtually or in copy, with the expectation that physical inspection would occur when normal operations resumed. DHS previously announced that employers would have until July 31, 2023 to complete in person review of I-9 documents that had originally been reviewed remotely under this temporary flexibility policy.
Temporary Policy Ends July 31, 2023; Deadline for in-person Document Review is August 30, 2023
With the temporary policy ending on July 31, 2023, employers will now have until August 30, 2023 to perform all required in-person physical examinations of documents for those individuals who have only received a virtual / remote examination under the temporary policy. DHS provides instructions on how to annotate the I-9 when performing the in-person physical document inspection. These instructions are summarized below.
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Who has performed the remote / virtual documents inspection and who will be performing the in-person / physical documents inspection?
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Instructions / Example
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The person who performed the remote / virtual inspection will also perform the physical inspection.
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Note that you physically examined the documents and the date, and then add your initials in the “Additional Information” field in Section 2. Do the same if you conducted both the remote inspection and physical inspection in connection with a reverification.
Example:
COVID-19; Documents physically examined on [date] by[initials]
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One person performed the remote / virtual inspection and a different person will perform the physical inspection.
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Note that you physically examined the documents and the date and add your full name and title in the “Additional Information” field in Section 2. Do the same if you are conducting only the physical inspection in connection with a reverification.
Example:
COVID-19; Documents physically examined on [date] by [full name], [job title]
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What if you are unable to physically meet with the employee and examine original I-9 documents?
You may designate, hire, or contract with any person you choose to complete, update or make corrections to Section 2 or 3 on your behalf. This person is known as your authorized representative. Keep in mind that you are liable for any violations in connection with the form or the verification process committed by your authorized representative. Therefore, you should ensure that your designated representative has experience in completing Form I-9 and review the form completed by your designated representative to ensure it is error-free.
Will DHS allow remote / virtual inspection in the future?
Possibly. DHS has proposed a rule that would create a framework under which the DHS Secretary could authorize alternative options for document examination procedures with respect to some or all employers. Such procedures could be implemented as part of a pilot program, or upon the Secretary's determination that such procedures offer an equivalent level of security, or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services or a national emergency declared by the President.
A final rule is expected later this year.
Next Steps
If you have employees who have only received a virtual / remote examination of I-9 documents then ensure you complete in-person physical examinations and annotate their I-9s by August 30, 2023. We will continue to keep you informed of any future developments related to the proposed rule for virtual / remote inspections.