The US Department of Homeland Security (DHS) and US Immigration and Customs Enforcement (ICE) announced on May 4, 2023 that employers will have until August 30, 2023 to complete the physical inspection of identity and employment eligibility documents for any employee whose Form I-9 was completed virtually pursuant to COVID-19–era temporary flexibility provisions.
In response to the COVID-19 pandemic in March 2020, ICE announced a temporary deferral of the requirement that employers conduct in-person reviews of employees’ original identity and employment authorization documents. Instead, employers have been permitted to review documents virtually or in copy, with the expectation that physical inspection would occur when normal operations resumed.
As hybrid employment became more common, DHS/ICE modified the rule to require in-person review once affected employees began “non-remote employment on a regular, consistent, or predictable basis.”
DHS and ICE announced in October 2022 that the flexibility provisions would end on July 31, 2023. US President Joseph Biden officially ended the COVID-19 national emergency on April 11, 2023 and the public health emergency will end May 11, 2023.
The May 4 announcement clarifies that, with the end of the flexibility provisions on July 31, 2023, employers will have until August 30, 2023 to perform all required physical examinations of identity and employment eligibility documents for those individuals (1) hired on or after March 20, 2020 and (2) whose identity and work eligibility documents were examined virtually or remotely according to the flexibility accommodations.
Upon completing the physical review of documentation, employers are to write “documents physically examined” with the date of examination in Section 2: Additional Information on the Form I-9 or in Section 3, as appropriate.
Morgan Lewis will continue to monitor development in this area and will publish updates as warranted.
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