The Department of Homeland Security (DHS) announced that its COVID-19 Form I-9 flexibilities will end effective July 31, 2023. These flexibilities were originally announced in March 2020, allowing employers with a fully remote workforce to review Form I-9 documents virtually (e.g., over video link, fax, email, etc.). DHS later expanded these COVID-19 flexibilities to include employees working fully remote, even if other company employees returned to the employer’s premises.
As of August 1, 2023, employers must review original identity and employment authorization documents in the employee’s physical presence when completing the Form I-9. We advise all employers to review their Forms I-9 as soon as possible to determine which employees presented their Form I-9 documents virtually at hire or for reverification purposes. Many of those individuals may have already presented their original documents to an employer for review. For employees who have not presented their original Form I-9 document(s) in person, they must do so no later than August 30, 2023. After the employer representative reviews the original document(s), the representative must annotate the employee’s Form I-9 in the “Additional Information Field” to include the term “COVID-19”, the date of the physical inspection, and the representative’s initials. Employers can find examples of the annotation at Form I-9 Examples Related to Temporary COVID-19 Policies | USCIS.
Many employees continue to work remotely and do not report in-person to a company location. In lieu of travelling to a company location for Form I-9 document review, an employer may designate an authorized representative to complete Section 2 of Form I-9 on its behalf. This representative could be a notary public, personnel officer, agent, or another trusted individual. Employers taking advantage of this option should carefully review the updated Form I-9 as soon as the document review is complete. The employer is liable for all Form I-9 mistakes even if a third-party representative completes the Form.
If an employee no longer works for the company prior to completion of the in-person document review, document inspection is not required. In that circumstance, the separation date should be noted in the “Additional Information” field. If an employee’s document expired by the time of in-person document review, the employer can proceed with the inspection and Form I-9 update, as long as the document was valid when presented virtually. Employers should not request a new Form I-9 document in that situation. Other common questions and answers can be found on the U.S. Citizenship and Immigration Services’ I-9 Central: Questions and Answers Related to COVID-19 | USCIS.
Employers should use particular care throughout the entire post-COVID flexibilities I-9 update process. Also note that separate Form I-9 reverification requirements still apply for employees with expiring work authorization. We recommend year-end internal and/or third party Form I-9 audits by qualified professionals to ensure compliance during and after this transition period.
For more information, please contact Kelly Fortier, Kelly Rourke, or Carrie Ziegler Thomas or join us for our upcoming webinar: Form I-9 Update: Preparing for the end of COVID-19 Flexibilities and other Best Practices.