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DHS, ICE release updates regarding conclusion of COVID-19-related Form I-9 flexibilities: Important details and information for employers

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have announced the upcoming termination of COVID-19-related Form I-9 flexibilities.

The flexibilities will officially end on July 31, 2023. However, DHS will grant employers an additional 30 days to complete applicable in-person physical inspections of required identity and employment authorization documents. Therefore, these inspections must be completed by August 30, 2023.

“DHS encourages employers who have been using those temporary flexibilities to plan ahead to ensure that all required physical inspection of identity and employment eligibility documents is completed,” a press release from ICE read.

More information about the end of the Form I-9 flexibilities can be found below.

COVID-19-related Form I-9 flexibilities: Background information

The COVID-19 pandemic led DHS to ease some “physical presence” requirements relating to Form I-9 compliance in March 2020, at the onset of the pandemic, as many employers transitioned to a remote work environment.

The flexibilities introduced a temporary change allowing employers to review the required identity and employment authorization documents while not physically in the same location as the new employee.

This inspection could be performed via:

  • Shared video chat (Zoom, Skype, FaceTime, etc.)
  • Email
  • Fax
  • Other digital platforms

The flexibilities still required new employees to finish Section I of the Form I-9 on their first date of employment and required employers to complete Section 2 of the Form I-9 after reviewing documents.

ICE later clarified that the relaxed “physical presence” requirements would remain in place until “affected employees undertake 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.”

The flexibilities were initially implemented for 60 days and were extended multiple times until the joint DHS and ICE announcement in May 2023 that they would conclude on July 31, 2023, followed directly by a 30-day “sunset” period.

Ending of COVID-19-related Form I-9 flexibilities: Notes for employers

With the upcoming conclusion of the COVID-19-related Form I-9 flexibilities, employers should:

  • Complete in-person verification of all applicable Form I-9 required identity and employment authorization documents as soon as possible, and no later than Aug. 30, 2023.
  • Add “documents physically inspected” and the date of inspection on the Form I-9 either in the additional information box of Section 2 or in Section 3, as applicable. The physical inspection delay should have already been noted in the Section 2, Additional Information field, per previous guidance from DHS.
  • Retain copies of all identity and employment authorization documents.

Employers should consider consulting with experienced immigration counsel to develop a plan to complete the Form I-9 in-person verification.

As always, please do not hesitate to contact Garfinkel Immigration Law Firm at 704-442-8000 or via email with any questions.

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