Employers: Form I-9 COVID Flexibilities Have Ended
By Samantha Bethel, Immigration Lawyer at Grzeca Law Group, S.C.
With COVID-19 Form I-9 flexibilities now ended, employers must physically inspect all I-9 documents that had been remotely inspected during the pandemic. Samantha Bethel details how in-person Form I-9 inspections should be handled.
As of July 31, 2023, the COVID-19 temporary flexibilities for Form I-9, Employment Eligibility Verification, no longer apply. U.S. Immigration and Customs Enforcement (ICE) announced that employers must complete in-person physical document inspections for employees whose documents were inspected remotely during the temporary flexibilities by Aug. 30, 2023. Employers who previously utilized the flexibility provisions to conduct remote I-9 document review must now plan to verify, in person, the identity and employment eligibility documentation for those employees.
Handling In-person Verification
The Department of Homeland Security (DHS) has provided some guidance for handling in-person verification:
Annotate the Existing Form. Once the documents have been physically inspected, the employer should annotate the “Additional Information” field in Section 2 (or Section 3, as appropriate) of Form I-9 by writing “COVID-19” and “documents physically examined,” with the date of the inspection and employer representative’s initials.
If the employer representative who conducted the virtual inspection is different from the one performing the physical inspection, DHS guidance advises that the person who performs the physical inspection should indicate the date they physically examined the documents as well as their full name and title in the Additional Information field, or complete a new Section 2 and attach it to the remotely inspected I-9.
What to Do When Forms Differ. If the employee presents acceptable documents for in-person inspection that are different from the ones they presented for remote inspection, then the employer may either:
complete Section 2 on a new Form I-9 and attach it to the original Form I-9 used for remote inspection (as best practice, DHS recommends this option); or
provide the document title, document number, issuing authority, and expiration date (if any) of the new document in the Additional Information field and notate that the employee presented this document at physical inspection.
Some documents presented for virtual review may have expired. As long as the employee’s document was unexpired at the time of remote inspection, the employer should not request a new document and can proceed with the physical inspection consistent with DHS guidance.
An Alternative Procedure for E-Verify Employers
DHS recently announced an additional procedure for Form I-9. Employers who meet four requirements may choose an alternative procedure instead of physically examining Form I-9 documentation that had been remotely examined under the COVID flexibilities. To qualify for the alternative procedure, the employer must have all of these requirements:
performed remote examination of an employee’s documents between March 20, 2020, and July 31, 2023;
been enrolled in E-Verify at the time they completed the Form I-9 for that employee;
created a case in E-Verify for that employee (except for reverification); and
be currently enrolled in and continue to participate in E-Verify.
Employers who do not meet all four requirements must perform an in-person physical examination of documents by Aug. 30, 2023.
All E-Verify employers that choose the alternative procedure instead of physical examination must follow the instructions for the alternative procedure provided by DHS. The employer must still complete the steps of the new alternative procedure to finalize the Form I-9 even if similar steps to the alternative procedure were performed at the time of hire.
DHS notes that "employers may not unlawfully discriminate when using this procedure based on a protected characteristic, such as by deciding that certain employees are not eligible for the alternative procedure.”
Employers Should Start Now to Comply with I-9 Policies
The end of the COVID flexibilities may have a significant impact on how companies maintain compliance with I-9 policies and companies should begin physically reinspecting eligibility documentation now. In light of the end of the COVID temporary flexibilities for Form I-9, Employment Eligibility Verification, lawyers should consult with their employer clients to answer any questions they have regarding maintaining I-9 compliance.
Meet the Author: Samantha Bethel
Samantha Bethel, Marquette 2021, is an immigration lawyer in Milwaukee who guides employers through various stages of the immigration process, from initial transfer through permanent residence.
