Form I-9: Employers Waiting for Change as Pandemic-Era Rule Ends
Form I-9: Employers Waiting for Change as Pandemic-Era Rule Ends
This original article was published in May 2023 and has since been updated.
July 2023 Update: The Department of Homeland Security (DHS) updated employers on July 21, 2023, about two Form I-9 developments.
First, effective August 1, 2023, employers who are enrolled in E-Verify and in good standing can continue to use remote verification. Employers must conduct the verification electronically through a live video call interaction. Employers who do not participate in E-Verify still have until August 30, 2023 to complete all required physical examinations of identity and employment authorization documents for those hired on or after March 20, 2020 and who only received a virtual or remote examination. U.S. Immigration and Customs Enforcement will not generally focus its enforcement on employers who can show they have taken timely steps to complete the physical document examination within a reasonable amount of time. Second, also effective on August 1, a new Form I-9 will be released for use and will now be one page and accessible on tablets and mobile devices. Employers can continue using the prior edition through October 31, 2023. DHS is not expected to release the new form before August 1.
May 2023 Update: Pandemic-era policies allowing for the remote verification of I-9 documents are set to expire on July 31, 2023.
Due to the COVID-19 pandemic, the Department of Homeland Security (DHS) allowed for certain flexibilities for Form I-9 employee document verification for remote workers. See OneDigital’s recent blog post on the temporary rule for more information. In connection with the end of the national public health emergency, the temporary policy on remote document verification will expire as of July 31, 2023. U. S. Immigration and Customs Enforcement (ICE) recently announced that employers must complete in-person physical document inspections by August 30, 2023 for employees whose documents were inspected remotely during the temporary rule period.
Physical Inspection of Previously Presented Remote Documents
U.S. Citizenship and Immigration Services (USCIS) recently provided guidance on how to notate Form I-9 when remotely inspecting employment authorization and identity documents and then subsequently performing the required in-person physical inspection. Specifically, when doing remote inspection, employers should have notated in Section 2 that a remote inspection of documents was completed along with the date of the inspection. Upon subsequent physical inspection, employers should enter “COVID-19” as the reason for the physical examination delay in the Section 2 Additional Information field when physical examination took place in the future. Once the employees’ documents were physically examined, the employer would add “documents physically examined” with the date of examination to the Section 2 Additional Information field on the Form I-9, or in Section 3, as appropriate.
If the person who performed the remote inspection also performs the physical inspection, they should indicate the date they physically examined the documents, then add their initials in the Additional Information field. If the person who performed the remote inspection cannot also perform the physical inspection, the person who performs the physical inspection should indicate the date they physically examined the documents as well as their full name and title in the Additional Information field. Employers should also make the required notations for remote and subsequent physical inspections of re-verifications in the Additional Information field in Section 2.
Going Forward: Authorized Representative Option
Employers with hybrid or fully remote workforces are now searching for answers on how to proceed with the physical inspection requirement. Unfortunately, DHS has not released any new guidance for employers who have remote employees who are far from physical office spaces where they can present their Section 2 documents or who have no physical offices at all. Until we await further word from DHS, the only other possible option for employers to satisfy the physical inspection requirement may be to designate an authorized representative to act on their behalf to complete Section 2. 8 CFR § 274a.2(b)(ii) allows anyone acting directly or indirectly in the interest of the employer or their agent to physically examine the identity and employment authorization documents and complete Section 2 with a signature.
An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. However, employers should be wary of designating a friend or family member of a new hire as the authorized representative. Employers should take steps, including formulating a policy, to ensure that the person designated understands the obligations of being an authorized representative and takes the responsibility seriously.
The employer is liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf. Employees cannot act as authorized representatives for their own Form I-9. In most states, employers can use a notary public for the physical inspection of documents. In such cases, the notary public is acting as an authorized representative of the employer, not as a notary. The notary public must perform the same required actions as an authorized representative. When acting as an authorized representative, the notary public should not provide a notary seal on Form I-9. Notaries should sign in the capacity of an Authorized Representative and not use their title of “Notary Public.” Note that some states, like California and Texas, have restrictions on using notaries for Form I-9 verification in those states. Employers in other jurisdictions should always check their local laws for changes restricting the use of notaries public for Form I-9 verification.
Potential Future Relief
There have been no further updates on DHS’s published proposed rule which could provide alternative options for Form I-9 document examination, including a remote verification option. In the event that the proposed rule is not implemented by July 31, 2023, employers will need to follow existing rules for document verification. Continue to watch for updates through the DHS website and OneDigital's Compliance Confidence blog.
For additional compliance news, check out our monthly compliance roundup here: What We’re Watching: Employer Compliance Across Benefits, HR, and Retirement.
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