I-9 Compliance Flexibility to End on July 31, 2023; Employers Have Until August 30, 2023, to Physically Inspect I-9 Documents

U.S. Immigration and Customs Enforcement (ICE) has announced that the temporary COVID-19 accommodations for Form I-9, Employment Eligibility Verification, will expire on July 31, 2023. Employers that have been relying on the temporary policy to perform remote I-9 inspections will have up to thirty days to comply with physical Form I-9 document inspection requirements after the COVID-19 flexibilities end. This means that by August 30, 2023, employers will be required to conduct physical inspections of original documents and update Form I-9 for employees whose documents were inspected remotely during the temporary COVID-19 flexibility policy, unless a physical inspection is triggered earlier under the policy.

Quick Hits

• The DHS/ICE temporary policy allowing remote verification of Form I-9 documents for employees working exclusively in remote settings due to COVID-19–related precautions will end on July 31, 2023.
• All required in-person physical inspections of identity and employment eligibility documents that were inspected remotely during the period of temporary flexibility must be completed by August 30, 2023.
• DHS plans to publish a rule to allow alternative procedures for verifying documents required by Form I-9.

ICE has permitted remote verification of Form I-9 for certain employees since March 2020. Remote inspection can include video, fax, or email verification and must be documented. The most recent version of the relaxed I-9 inspection policy stated that eligible employers were permitted to verify documents by video link, fax, or email until the affected employees began “non-remote employment on a regular, consistent, or predictable basis,” or until the end of flexibilities on July 31, 2023—whichever was earlier—after which the employers would be required to perform in-person physical examination of the I-9 documentation within three business days.

For employees who continue to work remotely, ICE has noted that an employer may use an authorized representative 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, employers will want to verify documents consistently and in a nondiscriminatory manner.

The U.S. Department of Homeland Security (DHS) plans to publish a regulation that would authorize the agency to allow alternatives to the 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.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.