On May 4, 2023, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced that the COVID-19 flexibilities for the Employment Eligibility Verification form (Form I-9) will expire on July 31, 2023.
The announcement also clarifies that employers will have until Aug. 30, 2023 to complete all required physical inspections of identity and employment eligibility documents.
Form I-9 Flexibilities
Federal law requires every employer that recruits, refers for a fee or hires an individual for employment in the United States to complete a Form I-9. To comply with Form I-9 requirements, employers must, within the first three days of employment:
Complete and sign Section 2 of Form I-9 for each new hire; and
Physically examine the documents each employee presents to prove his or her employment eligibility (documents must come from the form’s list of acceptable documents).
Throughout the COVID-19 state of emergency, DHS has adopted various temporary policies to provide employers flexibility in their employment eligibility compliance efforts. DHS has reviewed, renewed and updated these Form I-9 “flexibilities” to allow employers to:
- Review Form I-9 identification documents remotely; and
- Accept some expired identification documents when the expiration was caused by COVID-19 disruptions.
When using these flexibilities, employers have been encouraged to review the original DHS guidance on remote document verification for details and to stay up to date on which expired documents are still accepted as valid forms of identification and work eligibility by accessing pertinent information on the DHS’ Citizenship and Immigration Services website.
Expiration of Flexibilities
In October 2022, DHS and ICE announced that the flexibilities would be extended until July 31, 2023. With the imminent end of the COVID-19 national emergency DHS and ICE have reaffirmed that the Form I-9 flexibilities will end as planned on July 31 and that employers will have until Aug. 30, 2023 to “perform all required physical examination(s) 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 under the flexibilities.”
Proposed Rule
In addition, DHS has proposed a rule to create permanent Form I-9 remote verification procedures. The proposed rule was published in the Federal Register on Aug. 18, 2022.
As required by federal rule-making procedures, the proposal came with a 60- day public comment period, and DHS is expected to announce a final version of the rule once it has reviewed all the feedback received during the 60-day window.
Impact on Employers
The joint DHS and ICE announcement provides clear guidance that the federal government will allow employers up to 30 days to complete the physical review of I-9 forms created for employees hired since March 20, 2020. Employers should prepare to comply with this deadline by auditing their hiring records and ensuring compliance for all affected employees.
Although a permanent rule for remote I-9 verification is widely expected, employers should comply with current requirements until the new rule is published and becomes effective. For this reason, employers should also monitor DHS announcements and publications in the Federal Register for updates on the proposed rule.
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