Remote I-9 Verification: All Good Things Must Come to an End

Sherman & Howard L.L.C.

Sherman & Howard L.L.C.

Employers who took advantage of remote I-9 verification processes during the pandemic will soon get to do everything all over again—in person. A recent announcement from U.S. Immigration and Customs Enforcement (ICE) identifies when the pandemic-era flexibility is coming to an end and gives employers a deadline for completing physical inspection of work authorization documents for employees hired after March 2020.

To help employers comply with I-9 requirements during the pandemic, ICE relaxed its mandate that employers inspect original documents while in the physical presence of the employee.

Instead, employers could defer the physical inspection of documents until affected employees began non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. In the interim, remote inspection of documents (such as over Zoom) would suffice.

Recently, ICE announced that this flexibility in the Form I-9 process is coming to an end July 31, 2023. There will be an additional 30-day grace period to complete physical inspection of Form I-9 documents.

This means employers that were conducting the I-9 process virtually over the last three years will be required to conduct a new, in-person inspection of original documents for employees who had their documents remotely inspected by August 30, 2023. The employer must also by this date annotate the corresponding I-9s to indicate the delay in completing the physical inspection of documents was due to COVID-19. If the physical inspection is not completed within this time frame, the employer may face civil penalties.

Employers who have relied on Zoom to complete I-9s for remote workers are now faced with a choice. Either the employer must require each employee hired during the pandemic to travel to an office for physical document verification or the employer must designate an authorized representative to conduct the verification of physical documents on the employer’s behalf.

Employers should consider the need to conduct a physical inspection of documents for remote employees hired during the pandemic when considering return to office strategies. Employers should also think through how to best manage physical document inspections for employees who will remain remote workers.

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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