SUMMARY:  The U.S. Department of Homeland Security (DHS) has announced that the pandemic era Form I-9, Employment Eligibility Verification (“Form I-9”) “flexibility” provisions will expire on July 31, 2023.  Thereafter, in-person Form I-9 verification will again be required.

BACKGROUND:  The 2019 Novel Coronavirus Pandemic (“Pandemic”) presented significant challenges to executing Forms I-9 in-person.  In March 2020, DHS implemented “flexibilities,” designed to help companies meet their Form I-9 identity and work authorization verification obligations, during the public health crisis.

Among these flexibilities was the option of performing Form I-9 inspections (speaking to the employee and reviewing the documents they presented to establish identity and work authorization) remotely.  Basically, employers could interact with the employee remotely, inspecting and storing copies of the documents presented.  This exception was then annotated in the “Additional Information” block of Form I-9, Page 2.  Subsequently, the employer would review the physical documents and update the “Additional Information” block with “COVID-19 Documents physically examined on mm/dd/yyyy by…”

In essence, DHS allowed employers to defer the physical examination of documents until a later date, employing persons who appeared (remotely) to be eligible to work in the United States.  However, DHS announced on May 4, 2023 that these flexibilities would not be extended beyond July 31, 2023 and that the obligations to meet face-to-face with employees, reviewing their documents and executing the Form I-9, would again be the rule in July.

Separately, DHS is giving employers until August 30, 2023 to conduct the requisite physical inspection of identity and employment eligibility documents.

PRACTICAL APPLICATION:  As of July 31, 2023, new employee and reverification Forms I-9 can only be executed face-to-face.  For many employers, this is a full restoration of pre-Pandemic policy, meaning that employers will execute Forms I-9 during on-boarding, looking at identity and work authorization documents when they meet with employees and executing the Forms I-9 at the same time.

However, some employers will continue to utilize authorized representative options for remote employees.  In exercising this option, the employer may authorize another party to represent them in the Form I-9 process.  These authorized representatives have the same obligations as the employer to speak with the employee face-to-face and physically assess the identity and work authorization documents presented, identifying the representative in Form I-9, Section 2.

Among the important notes here is that employers have until August 30, 2023 to conduct the requisite physical inspection of the identity and employment eligibility documents presented under the flexibility provisions.  An audit of Forms I-9, completed during the Pandemic, is likely a smart move.  Thereby, employers can identify any Forms I-9 for which the required face-to-face review and reverification were not completed.

CONCLUSION:  DHS has extended the Form I-9 flexibilities for several years and those flexibilities will end on July 31, 2023.  By August 30, 2023, employers must have their Pandemic-era Forms I-9 in order.  This is a good time to make sure everything is ship-shape and Green and Spiegel is well-positioned to advise employers in meeting their Form I-9 obligations, with a minimal amount of business disruption. Please do not hesitate to reach out to us to discuss your travel and immigration needs.

DISCLAIMER: Please note, nothing we post here is legal advice, nor does reading anything we write or communicating with us on or through social media form an attorney/client relationship between us. Choosing an attorney is a serious matter and should not be based solely or primarily on advertising or any other public communication of an attorney or law firm.

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