Form I-9 Flexibility Coasts into Summer

In July of 2023, it will be more than three years since the U.S. Department of Homeland Security (DHS) began offering certain I-9 compliance flexibility for employers. We’ve published multiple updates and notices regarding the longstanding temporary compliance flexibility.

To recap, 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 physically review their employee’s identity. DHS stated it would “exercise discretion to defer the physical presence requirements related to [Form I-9].”

This latest announcement extends flexibility to July 31, 2023. The I-9 compliance flexibility permits certain employers that engage employees in remote work to inspect employee documents over video, fax, and email. Then they need to obtain, check, and retain physical copies of the documents within three business days. If in-person operations resume, employees onboarded using the remote inspection option must report in within three business days so that their documents can be inspected and verified in person.

But there are some limitations that employers have to keep in mind:

• Employers that use the remote inspection option must provide a written statement about their remote onboarding and telework policy for each employee.
• DHS provided language that needs to be on the I-9 Form if they must delay in-person inspection. Employers that take advantage of I-9 compliance flexibility may want to review DHS announcements and make sure that their I-9 forms meet DHS requirements.
• I-9 flexibility is only for remote employers and workplaces.

No exceptions exist if employees are physically present at a work location. They should continue to verify identity as they did prior to DHS granting temporary I-9 compliance flexibility.

Repeated extensions seem to have become the norm since the initial announcement of temporary I-9 compliance flexibility. Even though I-9 flexibility is continuing, employers may also want to note that  the DHS announcement also states:

“Employers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.”

In a separate statement, DHS announced that employers should keep using the current I-9 Form. Even after the expiration date of October 31, 2022, employers should use it until further notice. Monitor I-9 Central and Verified Credentials Industry News for information and announcements from DHS.