USA: Next Steps for Employer I-9 Compliance as Temporary Flexibility Ending July 31, 2023

U.S. Immigration and Customs Enforcement (ICE) has announced that employers will have 30 days to comply with Form I-9 employment eligibility verification physical document examination requirements when COVID-19 flexibility sunsets on July 31, 2023.

This answers two pressing questions employers and attorneys have been asking:

• Will the temporary I-9 flexibility be extended again beyond July 31, 2023?
  • The answer is “no”
• Will employers have more than three business days to conduct physical examination of documents that were examined remotely when temporary flexibility ends?
  • The answer is “yes” – employers will have 30 days until August 30, 2023

Since March 20, 2020, there has been an exception to the in-person I-9 verification requirements, allowing documentation to be virtually reviewed for certain remote employees. Pursuant to ICE’s announcement, the exception will no longer be in effect after July 31, even for employees who have not returned to the workplace. These employees’ I-9 documents must be physically reviewed in person by August 30, 2023.

For at least a year, DHS and immigration attorneys have been encouraging employers who have been using the temporary flexibility to prepare for the end of that program. On May 1, 2023, the White House announced that the COVID-19 Public Health Emergency would end on May 11, 2023, so this announcement is not wholly unexpected. Now, with less than three months to go, all employers must prepare for compliance.

Employers should:

• Prepare a list of all employees who were verified virtually
• Determine who will be conducting the in-person verifications and how the company will be reaching out to the affected employees
• Train staff on how to update I-9 forms after the in-person review. The virtually completed I-9s should have been annotated in the Additional Information field with “COVID-19” as the reason for the delayed in-person inspection. This must be updated by annotating “documents physically examined” with the accurate date and the name of the person who conducted the review in Section 2 of the I-9 or in Section 3 (for reverification), as appropriate.
• Make sure staff are aware of the special rules regarding I-9s for individuals who are eligible for automatic extensions of work authorization or who have work authorization based upon their status.
• Consider whether the company will use authorized agents to conduct some of the necessary document examinations and how the company will implement that process.

While the emergency COVID-19-related I-9 flexibility is ending, DHS is still considering alternative procedures for examining I-9 documents. On August 18, 2022, DHS issued a proposed rule on this topic and is reviewing all the comments it received.

Jackson Lewis attorneys are available to answer questions about the sunsetting of flexibility and how to prepare to meet the August 30, 2023, deadline.