DHS and ICE end remote I-9 inspection on July 31, 2023; The deadline for in-person physical inspections is August 30, 2023

By:  Kim Adamson

In March 2020, at the beginning of the COVID-19 pandemic, the U.S. Immigration and Customs Enforcement (ICE) deferred an employer’s requirement to conduct physical examinations of Form I-9 identity and employment eligibility documents for remote employees. The COVID-19 temporary flexibilities process was extended several times throughout the pandemic.

The U.S. Department of Homeland Security (DHS) and ICE have announced that the COVID-19 temporary flexibilities process will end on July 31, 2023. Employers will have 30 days, or until August 30, 2023, to complete in-person physical inspections of Form I-9 identity and employment eligibility documents that were remotely inspected via video, fax, or email during the temporary flexibility period from March 2020 through July 31, 2023.

DHS published a proposed rule in August 2022 regarding alternative procedures that would not require the physical examination of Form I-9 documentation.  The public commentary period ended on October 17, 2022, and DHS is reviewing the public feedback and expects the rule to be published by the end of 2023.  Unfortunately, after the August 30, 2023 deadline!

Employers who conducted remote verifications or re-verifications of Form I-9 documents during the flexibility period must now conduct in-person physical inspections of employment and eligibility documents submitted by employees with their Form I-9.

Employers and HR staff should determine the process for completing the in-person physical inspection of I9s, what internal staff or authorized representatives will be assigned, and the schedule of meetings with employees to ensure compliance before the August 30, 2023 deadline.  Consider creating a communication plan for all employees hired, rehired, or involved in an I-9 re-verification during the flexibility period that outlines the requirement and process, including what employees need to do to prepare for the in-person physical inspection and the deadline.  Solicit the assistance of leaders and managers to work with their employees to ensure they know the project’s importance and that their cooperation is critical in helping the company be compliant by the deadline.

Authorized Representatives for In-Person Inspection of Form I-9

DHS and United States Citizenship and Immigration Services (USCIS) allow employers to designate an authorized representative to conduct the in-person physical verification. An authorized representative may review and verify documents and complete and sign Form I-9 on behalf of the company.  The authorized representative can be any person an employer designates, such as internal HR staff, supervisors, managers, job forepersons, registered agents, or notaries.  For employees working remotely from locations not close to company offices, the employer may consider using an offsite third-party authorized representative, such as HR professionals from nearby company, local librarians, attorneys, accounts, municipality, county, or state workforce agency staff, and notaries (i.e., banks may provide notary services).

  • When using notaries as authorized representatives, it is essential to note that some states have special requirements or prohibit notaries from completing an I-9 on behalf of employers. Completing an I-9 is not a notarial act, and the notary should not affix their notary seal on the form, which could lead to a violation in an audit.
  • The employer should plan to train internal company staff and authorized representatives about the process and provide all authorized representatives, whether internal staff or a third party, with clear written instructions on completing or updating I-9 forms. Instructions must include guidance regarding the List of Acceptable Documents (i.e., an employee can decide what eligibility and work authorization documents they wish to present, and do not have to be the same documents initially submitted).
  • Employers or their authorized representatives must verify Form I-9 documents consistently and in a non-discriminatory manner. Employers should not discriminate against workers because of their citizenship, immigration status, race, color, religion, sex (including pregnancy), gender identity, sexual orientation, national origin, age, disability, or genetic information.
  • As always, the employer remains liable for any violations concerning the form or the verification process, including any violations committed by the person designated to act on the employer’s behalf.

Additional issues to consider when conducting Form I-9 in-person physical inspections

  • Employers were required to inspect Section 2 documents in-person for employees hired on or after April 1, 2021, who physically reported to work at a company location regularly, consistently, or predictably.
  • Employees hired on or after April 1, 2021, who worked exclusively in a remote setting due to COVID-19-related precautions, were temporarily exempt from the in-person physical inspection requirements. However, the temporary exemption period ended when the employee resumed non-remote employment regularly and consistently.
  • Form I-9s completed remotely during the temporary flexibility period should have the notation “COVID-19” in the Additional Information field (or in the margin) of the I-9 form. If that was not completed, it should be updated during the inspection, as well as adding a new note in the Additional Information field indicating “documents physically examined,” together with the date and name of the person who conducted the review of Section 2 (for verifications) or Section 3 (for rehires or re-verifications or updating an employee’s legal name change) of the I-9 form.
  • From May 1, 2020 to April 30, 2022, employees were permitted to present an expired identity document from List B of Form I-9. If an employee presented an expired identity document from List B, employers were required to update their I-9s by July 31, 2022. Employers who did not do this should take this opportunity to do so.
  • If the employee presents acceptable documents for the in-person inspection that are different from the ones previously shown for remote inspection, the employee may either:
  1. Complete Section 2 on a new Form I-9 and attach it to the original Form I-9 used for remote inspection; or
  2. Provide the document title, document number, issuing authority, and expiration date (if any) of the new document in the Additional Information field of Section 2 and notate that the employee presented a new document at the physical inspection.

Note:  DHS recommends option #1 above. 

  • If an I-9 document was valid during the remote inspection and is now expired, the employer or authorized representative should not request a new document during the current physical inspection process.
    • An exception to the above rule is that during COVID, many states extended the expiration dates of state-issued IDs or driver’s licenses. According to DHS, if an employee presented an expired identity document from List B document, they must now provide an unexpired document that establishes identity, which can be:
  1. a renewed version of the expired identity document from List B document that was previously presented,
  2. a different unexpired identity document from List B document, or
  3. an unexpired identity and employment authorization document from List A document [such as a U.S. passport or permanent resident card that establishes both identity and work authorization. The title, number, issuing authority, and expiration date should be noted in the Additional Information field of Section 2 of Form I-9. If an employee is no longer employed by the company, updating their I-9 form is unnecessary.
  • Employers who utilize electronic I-9s need to work with their vendor regarding the process to update the I9s completed remotely during the temporary flexibility period and ensure the system correctly tracks the completion of the in-person physical inspection updates to I-9 forms.
  • Any employer participating in E-Verify should refrain from creating a new case or updating an existing case related to conducting the current in-person physical inspections of Form I-9 documents.