In May, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced that employers will have 30 days to become compliant with Form I-9 requirements after the COVID-19 flexibilities end on July 31, 2023. The COVID-19 flexibilities were announced in March 2020 and then extended throughout the COVID-19 pandemic. Employers who have been using these temporary flexibilities should be taking steps as soon as possible to ensure that all required physical inspections of identity and employment eligibility documents are completed by August 30, 2023.
As a reminder, in March 2020, ICE stated that it would defer the requirement for in-person review of identity and employment authorization documents, instead allowing that to occur remotely. There was an expectation that physical inspection would occur within three business days after normal operations resumed. In later guidance, ICE stated that employers could continue to take advantage of the flexibilities until affected employees undertook non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements was terminated, whichever was earlier. In October 2022, DHS and ICE announced that the flexibilities would be extended until July 31, 2023. The announcement in May by DHS and ICE clarified for employers that they have until August 30, 2023, to perform all required physical examinations of identity and employment eligibility documents for those individuals hired on or after March 20, 2020, and who have only received a virtual or remote examination of their documents under the COVID-19 flexibilities. Once the documents have been physically inspected, the employer will need to add “documents physically examined” with the date of inspection in the additional information field on the Form I-9.
DHS issued a proposed rule in August 2022 that would allow alternative procedures for the examination of identity and employment eligibility documents. The alternative procedures could include some form of remote inspection and make it a standard part of the Form I-9 process. The public comment period closed on Oct. 17, 2022. DHS has stated that it is currently reviewing public comments and plans to issue a final rule later this year.