United States: ICE Gives Employers Until August 30 for In-Person Form I-9 Verification After COVID Flexibilities Expire

Since March 20, 2020, ICE has permitted remote verification of Form I-9 for certain employees where an employer is operating remotely due to COVID 19. Remote inspection can include verification by video, fax, or email and must be documented. The most recent version of the relaxed I-9 policy stated that eligible employers were permitted to continue to use remote I-9 verification until the affected employees began non-remote employment on a “regular, consistent, or predictable basis,” or until the flexibilities terminate on July 31, 2023 – whichever is earlier – and after which the employer must perform in-person physical examination of the I-9 documentation within three business days. Today’s announcement clarifies that where an employee continues to qualify for remote verification under the policy up to the termination of the accommodation on July 31, employers will have until August 30, 2023 to conduct a physical inspection of the employee’s original I-9 documents.

This announcement means that employers will not have to complete in-person physical examination of the I-9 documentation of the affected remote employees within only three business days of the July 31 end of the Covid I-9 accommodation, but instead will have until August 30 to complete the required physical examination. However, as noted above, employees whose Form I-9s were completed remotely and who begin non-remote employment on a regular, consistent, or predictable basis before July 31 must still undergo in-person inspection of I-9 documentation within three business days of beginning the non-remote employment.

Relatedly, the Department of Homeland Security plans to publish a regulation that would authorize the agency to allow alternatives to in-person inspection of identity and employment authorization documents in the Form I-9 process. A proposed rule was published in August 2022, and the public comment period closed on October 17, 2022. According to ICE, DHS is currently reviewing public feedback on the proposal and plans to issue a final rule later this year.

Employers that have been relying on the COVID-19 Form I-9 flexibilities should begin physical inspections as soon as practicable in anticipation of the end of the flexibilities and related 30-day grace period ending on August 30, 2023. For employees who continue to work remotely, employers may use offsite third-party agents to complete in-person, physical verification of I-9 documentation on the employer’s behalf. Regardless of the method used to physically inspect Form I-9 documentation, verification should be implemented consistently and in a non-discriminatory manner.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.