COVID-19 Flexibilities Come to an End and Other I-9 Changes

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Sunset of COVID Flexibilities

For more than three years, the Department of Homeland Security (“DHS”) has allowed employers the option to virtually review Form I-9 documents for certain employees. Where new employees work remotely, employers could identify and authorize their documents and complete their I-9s remotely no later than three days after the first day of work. This inspection deferral policy ends July 31, 2023.

 If employees’ documents were remotely inspected under these temporary flexibilities, employers are required to physically inspect their documents by August 30, 2023. Failing to comply and/or complete this physical inspection can result in fines.

Employers should begin this in-person examination now. Employers with an electronic I-9 system should coordinate with their vendor to update employees’ I-9s, including adding information about the physical inspection and noting both the remote and physical inspections. Where an employees’ employment ends before completing the physical inspection, employers should add this information to the I-9 along with the date of separation. If employees continue to work remotely or a hybrid schedule, employers are still required to physically inspect documents by August 30^th.

Employers may need the assistance of an authorized representative or designated agent to inspect documents on their behalf. If so, they should have procedures and best practices in place to ensure the proper review of identity and employment eligibility documents for I-9s. (Importantly, if an authorized representative completed the physical document inspection initially, the employer does not have to reverify that employee’s documents as it is not considered a remote inspection.)

For more information, employers can visit this web link.

New Alternative to the Physical Document Examination

On July 25, 2023, DHS also announced a new procedure to complete Form I-9 without physically examining documents. This option is available beginning August 1, 2023 to employers that are E-Verify participants in good standing (“qualified employers”). Within three business days of the first day of employment, an employee must send copies of their document(s) to their qualified employer.  Then the employer (or an authorized representative) must examine copies of the same document(s) (front and back) through a live video feed with the employee to ensure the document(s) are theirs and reasonably appear genuine. Qualified employers should select the box on the I-9 that the employee’s documents were examined using this procedure. Additionally, qualified employers must keep clear and legible copies of all documents (front and back) provided by the employee seeking to establish identity and employment eligibility for I-9 under this alternative method. A qualified employer must provide copies as required in an I-9 audit or investigation. If an employee does not want to provide their documents under this optional process, qualified employers must allow them to submit documents for physical examination.

While this procedure is optional, if a qualified employer offers it to some employees at an E-Verify hiring site, they must do so for all employees at the site. A qualified employer can offer this method for only remote hires. In deciding how to utilize the method, a qualified employer cannot use it for any discriminatory purpose or to treat employees differently based on a protected characteristic. As part of this new procedure, qualified employers and their employees who manage and create cases through E-Verify are required to take a training that covers antidiscrimination and fraud awareness.

Employers should note that DHS has said that these changes are separate from the COVID-19 flexibilities for I-9s that are set to expire on July 31^st. However, starting August 1^st, qualified employers will not have to physically examine documents of remote employees hired between March 20, 2020 and July 31, 2023 if they:

• Were enrolled in E-Verify when they remotely examined the employee’s documents for Section 2 (or reverification);

• Made an E-Verify case for the employee (although not for reverification); and

• Remotely inspected those documents between March 20, 2020 and July 31, 2023.

In this situation, qualified employers should not create a new case in E-Verify for the employee, although they should add “alternative procedure” and the examination date to the I-9 and follow all steps of this procedure mentioned above. Qualified employers should complete this process by August 30, 2023.

New Form I-9

Starting August 1, 2023, employers should also begin using a new version of the Form I-9 (Rev. 08/01/23). The new I-9 and instructions contain a number of changes. For example, Sections 1 and 2 are shortened; the preparer or translator certification is moved to a separate Supplement A; and a new box is added to mark when a qualified employer examines an employee’s document(s) under the new alternative procedure. Additionally, this I-9 is compatible with tablets and mobile devices.

Employers are not required to complete new I-9s for current employees with a properly completed I-9 unless reverification is required. While the current Form I-9 (Rev. 10/21/19) remains valid until October 31, 2023, using this version after this date can subject employers to penalties. To download a copy of the current Form I-9, visit this website.

The Maynard Nexsen Employment & Labor Law group stands ready to assist with questions about this and related matters.  We welcome your comments and questions.