On July 31, 2023, the final extension of flexibilities regarding remote completion of federal Form I-9 will expire.
The Department of Homeland Security (DHS) advises in its October 19, 2022 news release that employers are “encouraged to begin, at their discretion” in-person verification of employee documentation relative to identity and employment authorization for any employees hired after March 20, 2020, who participated in remote verification in reliance on DHS and Immigration and Customs Enforcement (ICE) guidance issued in March 2020 and updated in March 2021.
Pursuant to the updated 2021 guidance effective April 1, 2021, only those employees hired after April 1, 2021 working in exclusively remote settings due to COVID-19-related precautions remained temporarily exempt from physical examination of their Form I-9 supporting documentation, “until they undertook non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements was terminated, whichever occurred earlier.” If employees were physically present at a work location, employers were not entitled to continue to utilize the Form I-9 flexibilities and employers were required to complete in-person physical examinations.
On May 4, 2023, DHS and ICE announced a 30-day compliance period following expiration of the remote verification flexibilities on July 31, 2023. Employers will have this period to conduct in-person physical examination of identity and employment eligibility documentation for all individuals hired after March 20, 2020, and who received a virtual or remote examination of their identity and employment eligibility documentation for their Form I-9.
Employers should follow USCIS guidance on how to notate and update Form I-9 when conducting the required physical inspections to ensure compliance before August 30, 2023.
On August 19, 2022, ICE issued a notice of proposed rulemaking (NPRM) seeking public comment on making the COVID-19 flexibilities relative to remote verification of Form I-9 documentation permanent. In its proposed changes and conditions for alternative procedures, DHS states that it is considering adding fraudulent document detection and or anti-discrimination training requirements for employers should remote verification be made a permanent alternative, as well as possibly restricting the eligible population to utilize the alternative procedures proposed to those employers enrolled and in good standing in E-Verify, and prohibiting use by those who have been the subject of a fine, settlement, or conviction relative to employment eligibility verification practices.
The comment period closed on October 17, 2022, and to date no final rule has been issued and one is not anticipated this year.
Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.
Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.