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Remaining COVID-19 Form I-9 Flexibilities Sunset July 31

on Monday, 31 July 2023 in Labor & Employment Law Update: Sarah M. Huyck, Editor

Since March of 2020, remote Form I-9 verification through a variety of electronic and virtual methods has been allowed where all employees were working remotely due to COVID or, after April 1, 2021, when a new employee needed to work remotely due to COVID.  The policy allowing remote Form I-9 verification was extended multiple times, most recently in October, with an extension to July 31st.  At long last, U.S. Immigration and Customs Enforcement (ICE) announced this policy will not be further extended and will end on July 31, 2023.  ICE then announced shortly thereafter that employers have until August 30th to complete a physical examination of identity and employment eligibility documents for those hired on or after March 20, 2020 and whose documents were only examined virtually or remotely examination.

If you were able to take advantage of the remote examination policy at any point between March of 2020 and the present, you should begin preparing now to identify and contact these employees for a physical inspection of their Form I-9 acceptable documentation. We recommend that you develop a plan to by creating a list of employees hired since March 20, 2020, then confirm if their documentation was physically or remotely inspected.  Any employees who returned to in-person work under normal conditions or have been physically reporting to work at a company location on any regular, consistent or predictable basis in the past three years should have already had their documents physically inspected. If this has not occurred, their documentation inspection should be prioritized.

Once you have a list, the employee who reviewed the documents remotely should also conduct the in-person document inspection and annotate the Form I-9 for the employee in the Additional Information box in Section 2.  If this is no longer possible, the U.S. Department of Homeland Security (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 Form I-9 completed with remote inspection Form I-9.  However, USCIS updated its Form I-9 Central website a few days ago to indicate that, if a different person performs the physical inspection, that person should write their full name and title, instead of their initials, in the Additional Information box of the original Form’s Section 2. However, as many of these employees may continue to work remotely and not near the employer, an employer may need to rely on the services of an authorized representative for completing the inspection and completing a new page 2 and Section 2 may make more sense.

On a final note, in 2022, DHS published a Notice of Proposed Rulemaking indicating that it was considering alternative procedures allowing remote document examination for Form I-9s, in light of advances in technology and new work arrangements.  The rule would not create the alternatives, but rather formalize the authority for the Secretary of DHS to provide alternative options and/or conduct a pilot program to further evaluate an alternative procedure option for some or all employers, regardless of whether their employees physically report to work at a company location.  To date, no such notice has been issued.

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