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The Immigration Observer

Form I-9 Flexibilities during COVID-19 To Sunset this Summer

May 31, 2023

On May 4, 2023, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced that employers will have until August 30, 2023 to reach compliance with Form I-9 requirements – 30 days following the sunset of COVID-19 flexibilities on July 31, 2023.

DHS and ICE instituted COVID-19 flexibilities related to I-9 compliance in March 2020, when many business operations moved to remote work in an attempt to stem COVID-19 transmission. The flexibilities deferred the requirement that employers physically inspect identity and employment authorization documents, instead allowing this review to take place remotely, with the expectation that physical inspection would take place three business days after normal operations resumed. Under these flexibilities, employers were permitted to examine documents over video, fax, or email, then enter “COVID-19” as the reason for physical examination delay in Section 2 “Additional Information” field of the I-9, and, following physical examination of the necessary documents, add “documents physically examined” to the form along with the date of the physical examination.

In a follow-up guidance, ICE noted that employers could continue to implement COVID-19 flexibilities until affected employees undertook non-remote employment on a “regular, consistent, or predictable basis,” or the termination of such flexibilities, whichever came earlier. Finally, in October 2022, DHS and ICE announced that I-9 flexibilities would only be extended until July 31, 2023. This announcement left many employers with questions about specific steps and procedures necessary to ensure I-9 compliance following the expiration of the COVID-19 flexibilities. The current statement clarifies that, for all individuals hired on or after March 20, 2020, and who have only received virtual or remote examination under the flexibilities, employers will have until August 30, 2023 to conduct all required physical examination of identity and employment eligibility documents.

It is important to note that, on August 18, 2022, DHS proposed a new rule that would allow for alternative procedures for examination of documents required by the Form I-9, Employment Eligibility Verification. This proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternative options for document examination procedures with respect to some or all employers. The public comment period for the proposed rule closed on October 17, 2022 and DHS is currently reviewing public comments with plans to issue a final rule later this year. While there is always a possibility that a new rule may ease I-9 physical examination requirements, until any new rule in this area is adopted and comes into effect, employers must continue to comply with all current laws, rules, and regulations related to I-9 document examination.

Should you have any questions regarding I-9 verification requirements and I-9 compliance, please contact LTF attorneys at info@ltf-law.com

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