All U.S. employers are required to complete Form I-9 to verify the identity and employment authorization of individuals hired for employment in the U.S. As part of the verification process, employers were required to inspect employees’ Form I-9 identity and employment eligibility documents in person.  

 

In March 2020, however, due to COVID-19, the Department of Homeland Security (“DHS”) and U.S. Immigration and Customs Enforcement (“ICE”) announced a temporary accommodation to the physical presence requirement for verification of Form I-9 documentation. As a result, since March 2020, employers have been permitted to remotely verify Form I-9 documentation through video, fax or e-mail, with the understanding that employers would eventually need to verify such documentation physically and in-person, once “normal operations” resumed (the “Temporary I-9 Flexibility Policy”). 

 

DHS and ICE recently announced that the Temporary I-9 Flexibility Policy will formally expire on July 31, 2023 and that employers who had availed themselves of the Temporary I-9 Flexibility Policy to perform remote verifications of Form I-9 documentation now have until no later than August 30, 2023 to ensure that all required physical inspections of Form I-9 documentation are complete.  

 

DHS has published guidance as to how to notate Form I-9 when remotely inspecting employment authorization and identity documents and then subsequently performing the required in-person physical inspection. That guidance can be found here.

 

Employers, especially those with remote employees, may be wondering if there are any exceptions to the in-person verification process. Unfortunately, at this time, there are no exceptions, even for those employers with fully remote employees. However, DHS has stated that it is exploring alternative options for examining identity and employment authorization documents, including making some aspects of the Temporary I-9 Flexibility Policy permanent. DHS is expected to issue a formal rule later this year.  

 

In the meantime, if an employee works remotely and is not in close proximity to an employer’s place of business, then the employer may utilize and rely on the services of an “authorized representative” to verify the I-9 documentation and complete the form. While ICE has not provided much guidance as to who can serve as an authorized representative, it has explained that anyone other than the employee may serve such a role, including personnel officers, foremen, agents, or notary publics. With that said, employers should proceed cautiously when selecting a representative as they will be responsible for any violations in connection with completion of the I-9 form or the verification process.  

If you have any questions about this Alert, or if you would like assistance in ensuring your company’s compliance with current I-9 requirements, please reach out to Amy M.Gibson, Maryam H. Arfeen, or the Aronberg Goldgehn attorney with whom you normally work.