DHS Ends Form I-9 Requirement Flexibility

U.S. Immigration and Customs Enforcement (“ICE”), an agency under the Department of Homeland Security (“DHS”), recently announced that employers must complete in-person physical document inspections for employees whose documents were inspected remotely during the COVID-19 pandemic. Below is a recap of the events leading up to this latest announcement.

March 2020

I-9 flexibility began in March 2020 because DHS recognized the impact COVID-19 was having within the workplace. It became difficult for employers to review their employee’s identity physically. DHS stated it would “exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9).”

November 2022

On November 1, 2022, DHS announced it would extend flexibility to July 31, 2023. The I-9 compliance flexibility permitted certain employers that engaged employees in remote work to inspect employee documents over video, fax, and email. Then they needed to obtain, check, and retain physical copies of the documents within three business days. The announcement also stated that if in-person operations resumed, employees onboarded using the remote inspection option must report within three business days so that their documents could be inspected and verified in person.

May 2023

On May 5, 2023, the DHS announced that I-9 flexibility will officially end. However, employers will be given additional time—through August 30, 2023—to complete an in-person physical inspection of identity and employment authorization documents for employees whose documents were inspected remotely during the temporary flexibilities.

The DHS also published a proposed rule for alternative procedures allowing remote document examination for Form I-9 last year.  This proposed rule would create a “framework under which the Secretary of Homeland Security . . . could authorize alternative options for document examination procedures with respect to some or all employers.”  DHS anticipates publishing a Final Rule in the Federal Register to implement this proposal.

To learn more about the end of form I-9 flexibility, take a look at the official statement released by U.S. Immigration and Customs Enforcement on May 5th.