Historically, employers were legally required to conduct an in-person inspection of I-9 Section 2 documents (e.g., an employee's passport, driver's license, and/or social security card) to verify an employee's identity and eligibility to work in the United States. In response to the COVID-19 pandemic and its shelter-in-place mandate, on March 20, 2020, the Department of Homeland Security (DHS) issued Temporary Policies Related to COVID-19 that have allowed employers to remotely inspect these documents. Since that time, employers increasingly began relying on and utilizing I-9's remote verification flexibilities to determine employee work eligibility. The increased flexibility allowed employers to expand their applicant pools and hire employees outside their traditional geographical reach.
Recently, DHS announced that it is ending the temporary flexibilities and will again require employers to conduct in-person verifications of Section 2 documents for employees hired after March 20, 2020, and for new hires going forward.
Specifically, the temporary verification flexibilities will end on July 31, 2023. For new hires after July 31, 2023, employers will need to perform in-person verification.
Employers will have until August 30, 2023, to complete in-person physical documentation inspection and I-9 form annotations for employees whose documents were already inspected remotely during the temporary flexibilities.
As a result of these changes, many employers will need to develop a game plan to verify documents for employees residing outside their traditional geographic reach.
For employees whose documents were verified remotely since March 20, 2020, the employer's representative will need to physically inspect the employee's Section 2 documents and then annotate the I-9 in one of the following ways:
- Where the inspecting agent is the same person who did the remote inspection, they can write "COVID-19" and "documents physically examined," along with the inspection date, in the Section 2 additional information field on Form I-9 or Section 3 where appropriate.
- In cases where an employer representative who remotely viewed the verification documents is different from the person conducting the in-person review, DHS advises that the employer or its representative complete a new Section 2 of Form I-9 and attach it to the previously completed remote inspection Form I-9.
- If one of the original verification documents has expired, it can still be physically reviewed and verified; however, employers must distinguish between expired List A or C documents that do not require employment eligibility re-verification from those that do. (We note physical review and re-verification are separate processes.)
- Lastly, if an employee no longer has the documents presented for remote inspection, and it is not feasible to insert all the new information in the "additional information" box, it is acceptable to complete a new Section 2, with signature, and attach the new Section 2 to the original Section, with a brief explanation in the "additional information" box.
Employers will want to plan ahead, ensuring they can complete all required physical inspections of documents by the August 30, 2023, deadline. When feasible, employers should immediately start physically inspecting documents for newly hired employees to decrease their anticipated workload once the temporary verification flexibilities officially end a little over two months from now.
Employers should also identify the locations of employees hired since March 20, 2020, who were verified remotely as they will be required to update those employees' I-9's to verify a physical inspection of documents. Asking employees now if they are willing to travel so their documents can be inspected or coordinating with them to determine if they will be in the area for business travel, vacation or visiting family will limit stress and maintain good employee relations.
If employees are unwilling to travel or will not be in the area any time soon, an employer may designate an authorized representative to complete Form I-9 and inspect documents. Form I-9 Instructions state an "authorized representative can be any person [an employer] designates to complete and sign Form I-9 on [their behalf]." The representative need not have any particular qualifications, licensing, knowledge, experience or affiliation with the employer. Nonetheless, employers must be mindful that they will be liable for any violations concerning the form or verification process, including any sanctions for legal violations committed by the person designated on the employer's behalf. For this reason, a Notary Public can be a viable option for completing Form I-9 for remote hires. Notaries are usually easy to find and accustomed to identifying clients, reviewing official documents, and witnessing signatures.
For employers lamenting the logistics of resuming in-person verification processes, there is hope. In August 2022, the DHS proposed "Optional Alternatives to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9)." The DHS explained that these alternatives are required because "DHS recognizes that more employers may have adopted telework and remote work arrangements because of the COVID-19 pandemic." The public was invited to comment on the DHS's notice of proposed rulemaking, which closed in October 2022. The U.S. Citizenship and Immigration Services website states that "DHS anticipates publishing a Final Rule in the Federal Register that will implement this proposal."
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.