DHS and ICE Announce End to Form I-9 Virtual Document Review

By Marylou Fabbo, Esq. and Kelley B. Mantz

On May 4, 2023, the Department of Homeland Security (“DHS”) and U.S Immigration and Customs Enforcement (“ICE”) announced that starting July 31, 2023, temporary flexibilities for Form I-9 compliance will be eliminated, and employers will have 30 days to get into compliance with the new rules. This means that by no later than August 30, 2023, employers must conduct physical inspections of identity and employment eligibility documents for employees whose Form I-9 employment documents were not reviewed in-person.

Relaxed Form I-9 Standards

In early 2020, ICE authorized employers to conduct a virtual review of their employee’s identity and employment authorization documents (EADs) and delay the physical inspection of the documents if an employee was working remotely. As we addressed in a previous post, employers were permitted to conduct a remote examination of Form I-9 documentation, make an annotation in the employee’s file, and then conduct the physical examination of hard copies of the documents within three days of the employee working at the employer’s physical location. That process was instituted in response to the COVID-19 pandemic so that employers could continue onboarding employees while ensuring they stayed in compliance with CDC health guidelines regarding exposure and contact protocols during the pandemic. (If the employee was not a remote worker, the flexibility did not apply and the employee was required to bring in their identity and EADs for physical inspection within three days of starting work.) As of this moment, employers ability to virtually review identification and EADs will begin to wind down on July 31, 2023. But, it is possible that remote document authorization may be a permanent change some time in the future.

By August 30, 2023 Employers Must Complete In-Person Physical Document Inspections

Now that the I-9inspection flexibilities are ending, employers must complete physical inspections of the employees’ documentation. Let’s break it down for you:

Step 1: Determine whether an employee was brought on during the pandemic.
Step 2: Determine whether the employee was working remotely when hired.
Step 3: Review your files to find out whether the employee’s Form I-9 was completed by virtual means (i.e. by Zoom, etc.).
Step 4: If an employee’s identification and EADs were verified by looking at hard copies in-person, you are all set.
Step 5: If an employee’s identification and EADs were not verified in person, schedule an appointment with the employee (preferably before July 31, 2023, but no later than August 30, 2023) to come into the office so you can complete a physical examination of their paperwork.
Step 6: If a remote employee does not live close to or in the same state as your organization’s main office and you are not able to easily physically examine their documents – you can designate, hire, or contract with an authorized representative (i.e. another employee in the same location, a notary, etc.) to physically examine the employee’s identification and EADs for you. An authorized representative can be any adult. They must perform all duties required for authenticating the documents and the employer takes on all liability for any violations or mistakes made by the authorized representative in the authentication process. Additional information regarding designating an authorized representative can be found here.
Step 7: Once you, or an authorized representative, have examined the employee’s identification and EADs, annotate the employee’s I-9 paperwork in the “Additional Information” section stating that the employee’s identity has been certified in person, who conducted the examination, and on what date it occurred. See an example provided by DHS here.

DHS Proposes Rule to Permanently Change Form I-9 Verification Requirements

On August 18, 2022, DHS issued a proposed rule that would allow alternative procedures for the examination of identity and EADs. There was a public comment hearing period for the proposed rule that ended on October 17, 2022. It is expected that DHS will review the public comments and make any necessary adjustments, if applicable, and will issue a final ruling on the proposed rule later this year.

The proposed rule from August 2022 acknowledges that many employers have adopted telework and hybrid remote work arrangements because of COVID and that some plan to continue offering or requiring some employees to work remotely.

In the proposed rule under Section III. (“Background and Purpose”), subsection C. (“Need for the Proposed Change”), the drafters quoted the U.S Bureau of Labor Statistics’ report from early 2021 which found that nearly 1 in 4 people (22.7 percent) employed in February 2021 teleworked because of the COVID pandemic. But, with the technological advancements and modernizations that employers were forced to implement due to COVID, many employee’s found it easy to work from home and some even came to prefer it.

A study by the Pew Research Center, (which provides information on social issues, public opinion and demographic trends), also quoted in the proposed rule in Section III subsection C, found that 61 percent of people in 2021 said they were choosing not to go into the office to work, and only 38 percent said they were working from home because their physical workplace was closed. This is contrasted with study conducted earlier in the pandemic, also by the Pew Research Center, finding that 64 percent of employees said they were working from home because their offices were closed.

Based off this information from the proposed rule, it appears that even though offices are now generally open, many employers are still affording employees with the opportunity to work remotely and employees are choosing to utilize it. Thus, it appears likely that work patterns for many employees may be permanently affected.

While the repeal of the I-9 flexibilities will undoubtedly affect employers and employees whose staffing and working patterns have changed due to the flexibilities of remote work, this decision by ICE and DHS does not appear to be the final legislation surrounding the issue. The proposed rule, if passed, could award the flexibility to some approved employers and allow the workforce to benefit from the technological advancements and procedures that have been developed through the navigation of the global pandemic. There is no question that the pandemic posed many challenges to all aspects of our lives, but there are some resources that we developed that can continue to work in our favor as we continue to navigate the post-pandemic world.