I-9 Record-Keeping and the End of Covid-19 Flexibilities

Moore & Van Allen PLLC

Moore & Van Allen PLLC

This Client Alert is to Notify MVA Clients who are Employers that Certain Pandemic Era Policies are Ending. During the pandemic, DHS implemented an inspection deferral policy. Under this policy, employers with employees working remotely could remain compliant by following these steps: 

  • New employees return Form I-9 with Section 1 completed and signed no later than the first day of employment (after accepting the job offer).
  • Employers inspect identity and authorization documentation furnished by new employees AND complete and sign Section 2 of the I-9 through in-person OR REMOTE MEANS no later than three days after a new employee’s first day of work.

The Flexibility to process I-9s remotely which was implemented during the COVID-19 pandemic will end on July 31, 2023.

Employers must complete in-person physical document inspections of employee documents that were remotely inspected by August 30, 2023.

What Should Employers Do Now?

For any employees whose documents were reviewed through remote means, employers should TAKE STEPS NOW to complete in-person physical examination of the documents before August 30, 2023. Note that in-person document verification by an authorized representative on behalf of the employer is not considered “by remote means” and does not require a new verification of documents. This is also an opportunity for employers to conduct an internal audit of their Form I-9s with counsel. Employers should also review the integrity of their employment verification procedures, especially if they relied on the pandemic era’s remote verification policies. This will give them the information needed to make an informed decision about whether to take advantage of any future remote verification system in the case that DHS implements one.

U.S. employers are required to verify the identity and employment authorization of individuals they hire using the Form I-9.

  • After being hired offered employment, on or before the first day of employment, employees complete Part 1 of Form I-9.
  • Within three business days of the start of employment, employees provide original documents to prove their identity and authorization to work.
  • Employers review the employees’ documents and complete and sign Part 2 of Form I-9.
  • Employers maintain the Form I-9 and may also keep copies of the supporting documents for a defined period.

Some employers may voluntarily use the E-Verify system to verify employees’ document electronically with the Department of Homeland Security (DHS). E-Verify does not replace the I-9 record-keeping requirement, but it gives employers confidence that an employees’ documents are legitimate. While it’s optional, some employers may be required to use E-Verify by a state or as a condition for federal contracting.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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