DHS Ends Form I-9 Requirement Flexibility
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.
How to Notate Remote Inspections and Subsequent Physical Inspections
If the person who performed the initial remote inspection also performs the physical inspection, they should indicate the date they physically examined the documents and then add their initials in the Additional Information field as seen below.
If the person who performed the remote inspection cannot also perform the physical inspection, the DHS advises that the person who performs the physical inspection should indicate the date they physically examined the documents as well as their full name and title with the employer in the Section 2 “Additional Information” field.
Designated Third Parties
Employers should remember that whether the employer has remote workers due to the COVID-19 pandemic or otherwise, the employer has the option to designate a third party to act on its behalf in physically examining the required documents and completing Section 2 of the Form I-9. The authorized representative may be anyone, including a personnel officer, foreman, agent, Human Resources representative at a nearby company, state workforce agency staff, notary public, or even an employee’s own family member.
With respect to a notary public, the notary public would be acting as an authorized representative of the employer, not as a notary, and thus a notary seal should not be placed on the Form I-9. Employers should consult state and local law requirements regarding the use of notary publics. For example, neither Nebraska nor Iowa has any state law restricting who can be designated as an authorized representative of the company, but California law specifies that a notary public may be designated as an authorized representative only if the notary public is also an immigration consultant registered with the California Secretary of State.
DHS does not require the company to have a specific agreement in place or other documentation for Form I-9 purposes. It is imperative to remember that the employer remains liable for any violations committed by the designated person acting as its authorized representative. Therefore, the employer will want to check all Form I-9s completed by a third party for accuracy.
Employers who have been relying on the Form I-9 flexibilities should begin physical inspections as soon as possible to reach compliance by August 30, 2023. If you have any questions regarding the Form I-9 flexibilities coming to an end, please contact a member of Koley Jessen’s Employment Group.