All U.S. employers are required to complete Form I-9 for employees hired to work in the United States.
This form serves to verify an employee’s identity and ability to work in the U.S. Within 72 hours of hire, an employee must present their employer with acceptable identity and employment authorization documents. The employer must physically inspect the documents to determine whether they reasonably appear to be genuine and belong to the employee.
March 2020 Flexibility
At the onset of the pandemic, Immigration and Customs Enforcement (ICE) eased the requirement for employers to conduct the in-person inspection of identity and work authorization documents, allowing employers to review the documents remotely (via email, video, fax, etc.) while taking COVID-19 proximity precautions.
ICE indicated that once normal operations resumed or the flexibilities ended, however, employees onboarded using remote verification were to report to their employer within three business days for in-person verification of their Form I-9 documents.
April 2021 Flexibility Modified
I-9 COVID flexibilities were amended to state that employees hired after April 1, 2021, must present documents for physical inspection if “they physically report to work at a company location on any regular, consistent, or predictable basis.”
Consider this example. You hired a new employee in September 2020. They worked fully remote from their start date until May 2021, at which time they began reporting to your physical office every Tuesday and Thursday.
To have complied with the April 2021 guidance, you should have instructed the employee to present their physical I-9 documents within 72 hours of their return to work because they were working in the office on a regular, consistent, or predictable basis.
Flexibility Ends July 31, 2023
ICE confirmed that the I-9 COVID flexibilities will be sunset on July 31, 2023. They are granting employers 30 days to ensure compliance with Form I-9 requirements. Thus, by August 30, 2023, employers must physically inspect I-9 documents for all employees hired on or after March 20, 2020.
Authorized Representative Inspection
Physical inspection of I-9 documents may be done by a person appointed as an agent of the employer for this purpose. The agent may be any person, although we recommend that the person be at least 18. The employer is responsible for errors made by the agent, so communication with the agent and careful review of the I-9 is necessary to ensure compliance.
If an agent is doing a physical inspection following a virtual inspection by the employer, the agent must follow the protocols provided to update the I-9 described below.
How to Annotate Form I-9
ICE has made clear that the forms for workers who were verified remotely should include specific annotations. It was recommended that the “Additional Information” field in Section 2 should include the date by which remote verification was completed.
Once the physical document inspection is performed, the following annotation should be added:
COVID-19
Documents physically examined on [date] by [initials].
If the employee performing the physical inspection is different than the person who inspected remotely, they should add their full name and job title instead of initials only.
USCIS provides additional form examples related to the temporary COVID policies here.
Practical Considerations
Fortunately, ICE issued this guidance in early May, allowing employers to prepare well in advance of the August compliance deadline.
Begin planning for and implementing the physical inspection process now. Develop a list of employees hired since March 20, 2020, that require physical document inspection. Employers complying with previous I-9 guidance should have already physically inspected documents for those employees who have returned to in-person work under normal conditions or those physically reporting to work at a company location on any regular, consistent, or predictable basis. If you have not already verified documents for those employees, prioritize their inspection.
Clearly and repeatedly communicate deadlines with those employees who must present physical documents.
If you are the employer contact responsible for physically inspecting I-9 documents and annotating the form, consider setting aside time on your calendar each week to plan, communicate, and execute your strategies to remain compliant.
Lastly, if you have questions or concerns about the compliance of your Form I-9s, contact your Dentons immigration attorney to advise further on your specific situation.
