On May 4, 2023, the U.S. Department of Homeland Security (DHS) announced the discontinuation of the temporary flexibility policy that allowed remote inspection of Form I-9 documents, originally introduced in March 2020 due to the COVID-19 pandemic. Under the flexibility policy, employers were permitted to conduct the inspections of I-9 documents remotely and enter “COVID-19” as the reason for the physical examination delay. Employers were required to perform a physical inspection once employees returned to work on a regular basis or following DHS’s termination of the remote inspection policy.
This flexibility policy will officially end on July 31, 2023, and employers will have until August 30, 2023, to complete all required physical inspections of identity and employment eligibility documents. In other words, Employers have until August 30, 2023, to conduct a physical inspection of original I-9 verification documents and update the Form I-9 for employees whose documents were inspected remotely during the flexibility period. After conducting the inspection, employers should mark the “Additional Information” box located in Section 2 of the form with the phrase “documents physically examined,” the inspection date and the initials of the designated representative who carried out the inspection.
Employers may also use an “authorized representative” to review and complete the Form I-9 for remote employees. An authorized representative can be anyone, including a family member or friend of a newly hired employee. It is important to keep in mind, however, that the employer retains liability for any violations related to the form or the verification process, even when an authorized representative completes the Form I-9.
All noncompliant I-9s need to be physically inspected before August 30, 2023. Following inspection, employers should annotate the “Additional Information” box in Section 2 of the form with “documents physically examined,” the date of the inspection and the initials of the authorized representative who completed the inspection.
DHS has also published Form I-9 examples and guidance for employers when updating the Form I-9, which can be accessed here.
If you have any questions about this Alert, we encourage you to contact your Shulman Rogers attorney for solutions and recommendations.
