Form I-9 Flexibilities to Continue Through July 31, 2023: A Review for Employers

The U.S. Department of Homeland Security (DHS) has extended a policy providing employers with flexibility in meeting certain Form I-9 Employment Verification requirements through July 31, 2023.  The policy relaxes the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person”.

Who Does the Policy Affect?

Form I-9 in-person inspection rules continue to be relaxed for any U.S. employer who converted to a total remote working schedule for all employees due to COVID-19. If there are employees physically present at a work location, there are no exceptions to the in-person verification of identity and employment eligibility documentation for Form I-9.

How Should Qualifying Employers Proceed?

Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.

Qualifying employers who avail themselves of this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy.

As a general matter for remote workers, a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person within three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.

The relaxed rules for qualifying employers with a total remote workforce will remain in place until July 31, 2023.

Gibney is closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. If you have questions regarding this alert or the Form I-9 process generally, please contact your Gibney representative or email info@gibney.com.