Important Changes Regarding I-9 Verification
By Attorneys Brian P. Goodman, Storm B. Larson, and Mai Chao Chang
In response to the COVID-19 pandemic in March of 2020, U.S. Immigration and Customer Enforcement (ICE) announced temporary flexibility allowing U.S. employers to remotely examine employees’ I‑9 documents, instead of requiring physical inspections of such documents. This flexibility ended on July 31, 2023, which means that employers must once again physically inspect all new-hire I‑9 documents. Employers should also complete in-person physical inspections of all I‑9 documents that had been remotely inspected during the flexibility period by August 30, 2023.
When the social distancing requirements of COVID-19 forced some employees to work remotely, ICE announced a temporary relaxation of the physical document inspection rules. For those employees not working in the employer’s workplace on a regular, consistent, or predictable basis, the employer was allowed to inspect I‑9 documents via email, video, or other remote arrangement and note “COVID-19” in the additional information field of I‑9 Section 2 to justify remote verification. The employer was nonetheless expected to request and inspect physical I‑9 documents in person when the employee returned to the office or when the flexibility was terminated, whichever was earlier, and note the physical examination on the employee’s I‑9.
Employers should review the records of those employees hired after March 2020, to determine which employees’ I‑9 documents were remotely verified during the flexibility period. Before August 30, 2023, employers are required to physically inspect those remotely viewed identity and employment authorization documents and make a note of such examination on the employee’s I‑9 form.
The Department of Homeland Security (DHS) published a proposed rule in August of 2022 that would allow alternatives to the physical I‑9 document inspection requirement for some or all employers in the future. DHS is now reviewing the public’s comments to that proposed rule. If DHS determines that the relaxed procedures offer an equivalent level of security, the rule may become permanent. For now, however, employers should follow the physical examination requirements.
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