The U.S. Department of Homeland Security (DHS) has officially announced that on July 31, 2023, the temporary flexibilities around Form I-9 document inspection — that began when the COVID-19 pandemic started — will officially end, and all required physical inspection of identity and employment eligibility documents must be completed by August 30, 2023.
As previously reported, the federal government announced in March 2020 that it was deferring the physical presence requirements for employers that have employees “taking physical proximity precautions due to COVID-19.” In December 2021, this flexibility was extended into 2022; in October 2022, it was extended into 2023.
The DHS is giving employers advanced notice so they have additional time to complete the in-person physical inspection of identity and employment eligibility documents for individuals who were hired on or after March 20, 2020 (and therefore have received only a virtual or remote examination under the flexibilities), and annotate the Form I-9 accordingly. Keep in mind that even during these temporary flexibilities, once employees physically reported to work on any regular, consistent or predictable basis, employers were supposed to verify in-person their required documents.
According to the U.S. Citizenship and Immigration Services (USCIS), annotations should be made in one of two ways:
- If the person who performed the remote inspection also performs the physical inspection, they should include in the “Additional Information” field both the date they physically examined the documents and their initials; or
- If someone other than the person who performed the remote inspection performs the physical inspection, that different individual should include in the “Additional Information” field the date they physically examined the documents, as well as their full name and title.
Although this temporary, COVID-19-related flexibility will soon come to an end, this is not necessarily the be-all, end-all for flexibility around Form I-9 document inspection.
On August 19, 2022, U.S. Immigration and Customs Enforcement (ICE) sought public comment “regarding making permanent some of the current COVID-19 pandemic-related flexibilities to examine employees’ identity and employment authorization documents for the Form I-9.”
Comments on this proposed rule closed on October 17, 2022 — and it received a total of 512 submissions from individuals, anonymous entities or individuals, and employers large and small. The DHS is reviewing public comments and plans to issue a final rule later this year.
Employers should plan to complete any remaining physical inspections of Form I-9 documents to meet the August 30, 2023, deadline.
Jessica Mulholland, Managing Editor, CalChamber