Employers: Form I-9 Physical Inspection Compliance Deadline Is August 30, 2023

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.

Background

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.

DHS/ICE Announcement

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.

Considerations for Employers

• The guidance presumes that the same employer representative who reviewed the documents remotely will also conduct the in-person document review. However, if the person who virtually examined the document(s) is not the one who performs the physical inspection, DHS previously advised that the employer representative conducting the physical inspection complete a new Section 2 of the Form I-9 and attach that to the complete remote inspection Form I-9.
• A document that has expired in the time since it was presented virtually can still be physically reviewed and verified; however, employers must distinguish expired List A or List C documents that do not require employment eligibility reverification from those that do. Physical review and reverification are separate processes and obligations.
• Employees might no longer possess the documents that were presented for remote review. In this instance, DHS previously indicated that if it is not feasible to insert all the new information in the “additional information” box, then it is acceptable to complete a new Section 2, with signature, and attach the new Section 2 to the original Section 2, with a brief explanation in the “additional information” box.
• In some instances, the employee will be working remotely and not in proximity to the employer. Such a situation may require relying on the services of an authorized representative for completing Section 2. Anyone other than the employee may serve as an authorized representative. Once Section 2 is completed by an authorized representative, the employer should review the form to ensure that it is error-free, as the employer is liable for any paperwork deficiencies in the Form I-9 completed by the authorized representative.

Morgan Lewis will continue to monitor development in this area and will publish updates as warranted.