October 21, 2022Client Alert

Employers Should Continue to Use Version 10/21/2019 of Form I-9 Beyond Expiration Date

On October 12, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that employers should continue to use the current Form I-9 (edition 10/21/19) after its expiration date of October 31, 2022, until further notice. The Department of Homeland Security (DHS) will advise when the new version of the Form I-9 becomes available.

Given the increased enforcement of immigration-related laws in recent years, employers should use particular care when handling Form I-9 and other immigration-related employment processes and practices. U.S. Immigration and Customs Enforcement (ICE) conducted 3,903 Form I-9 inspections in Fiscal Year 2020, nearly three times higher than the audit numbers in Fiscal Year 2017. Annual internal Form I-9 audits and periodic third party Form I-9 audits by qualified professionals are recommended. Many mistakes discovered during an audit can and should be corrected. 

Compliance Reminders:

  • Employers must complete Form I-9 each time they hire any person to perform labor or services in the United States.
  • Employees must complete and sign Section 1 of Form I-9 on or before their first day of employment.
  • Employers must complete and sign Section 2 of Form I-9 within three days of the employee’s first day of employment.
  • Under normal circumstances, employers must review an employee’s original identity and employment authorization documents in the employee’s physical presence when completing the Form I-9. However, due to continued COVID-19 precautions, DHS has extended Form I-9 flexibilities until July 31, 2023. As a reminder, under these flexibilities, if an employee hired on or after April 1, 2021, works exclusively in a remote setting due to COVID-19 related precautions, the employee is temporarily exempt from the normal physical inspection I-9 rules. The employer may instead review the employee’s documents remotely (e.g., over video link, fax, email, etc.). Normal physical inspection rules will again apply once the employee undertakes non-remote employment on a regular, consistent, or predictable basis or the extension of I-9 flexibilities is terminated by DHS, whichever is earlier.
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