Ready or Not: Form I-9 Flexibilities are Winding Down

On May 4, 2023, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced the official sunset date for COVID-19 related Form I-9 physical inspection flexibilities: July 31, 2023. Additionally, ICE advised that employers would have 30 days, or until August 30, 2023, to complete an in-person verification of all employees that were virtually verified since March 2020. Yesterday’s announcement put an end to the speculation of whether the remote policy would run past July, and whether employers would only have three days after the termination of the flexibilities in which to update I-9s. No and No.

What were the temporary COVID-19 flexibilities?

In March 2020, ICE issued a press release stating that, in light of the COVID-19 national emergency, employers could temporarily defer physical inspection of employee identity and work authorization documents related to Form I-9 completion. Instead, employers could virtually verify employees’ documents via video or via fax/email (collectively, “remotely”). Initially, the ICE guidance mandated that the business was completely shut down to benefit from this flexibility and that all employees verified remotely would need to physically present their documents in-person for inspection “once normal operations resume.” A year later, on March 31, 2021, ICE relaxed the requirement relating to the operational status of the employer, and instead, focused on the employee, allowing for remote inspections to continue where employees were working from home due to COVID-19. In our April 1, 2021 blog, we discussed the expansion of the “in-person” exemption, which then offered flexibility for companies that were phasing back in employees, as doing so no longer triggered the in-person inspection requirement for all new hires. ICE updated their instructions to replace the phrase “once normal operations resume” with “until [the employee] undertakes 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.” At this point, if mistakes were made in terms of applicability of the policy, companies can only move forward and ensure they are remediating as quickly and accurately as possible.

While ICE needed to be more precise with employers, their guidance never applied to permanent remote employees. Actual remote employees, who were allowed to work from anywhere without expecting to return to an in-person setting, were never offered the COVID virtual flexibilities. Understandably, many employers misapplied the applicability standards and incorrectly allowed for remote inspection. In this case, an authorized representative should be used if an employee cannot appear at the worksite to update the I-9 with a physical inspection – see more below.

Thoughts on Timing?

With the end of the national emergency, the COVID-19 flexibilities will expire after three years of extensions on July 31, 2023. Employers will have an additional 30 days from that date, or until August 30, 2023, to complete a physical examination of documentation and update all Forms I-9 for employees that have yet to complete an in-person inspection. Until now, ICE had not opined how much time employers would have to complete in-person verification once an employee returned to the office. While many feared the three-day rule would be applied, our bets were always on ICE landing between 90-120 days. Since ICE started the clock in early May, they actually provided slightly under 120 days for employers to comply. Alternatives should be immediately considered for companies whose workforces remain remote due to COVID; the summer always comes and goes quickly.

So what is the Authorized Representative method?

With the burden of updating hundreds, or thousands of remote Forms I-9, many employers implemented an Authorized or Third-Party Representative model – what we refer to as a "friends and family" process. In earlier blogs Hidden ICE Guidance On Virtual I-9s, and The 2020 Summer Defrost Continues: ICE Extends I-9 Flexibility, we noted employers have always been allowed to utilize a third party as an authorized representative to complete Section 2 (or Section 3) of the Form I-9 on an employer's behalf. However, things heated up during the pandemic, and employers were forced to think outside the box. We saw employers becoming more comfortable with designating a friend, relative, colleague, neighbor, barista, mail carrier, etc., with reviewing identity and employment eligibility documents. Working with these employers, we created SOPs and directives outlining compulsory post-verification completion audits and document copy mandates to ensure accuracy and compliance. Since the representative's actions are imputed on the company, adding guardrails is critical.

Walk me through this.

1. Identify all Forms I-9 requiring updates. How you do this depends upon how your company stores I-9s (paper or electronically), how careful you were in terms of coding COVID I-9, and how you organize your system. Hopefully, you’ve been tracking your completed COVID I-9s from the start.
2. Create a project plan. The plan should ensure that the entire population is notified and provided background on what is required, the requisite timing for compliance, and the repercussions for not cooperating. The project plan should also outline how updates will be tracked.
3. Decide if your physical inspection will occur at the worksite (forcing folks still working from home to come in), or if you will use an Authorized Representative model (or hybrid offering). Regardless, examine the workflow offerings and limitations associated with paper completion or with your vendor.
4. Train your employees conducting physical inspections and create guidance for any authorized representatives assisting in the process. Ensure they are aware of the nuanced rules surrounding documents not found on the List of Acceptable Documents and automatic extensions of EADs.
5. Provide samples and guidance to your HR teams, or authorized representatives, describing how to physically update the Forms – see below for more information.
6. Allow employees to present their choice of identity and work authorization document(s) when updating Forms I-9. They do not need to present the same document(s).
7. Ensure that you did not miss updating any expired List B documents. See, The End is Near: COVID-19 List B Document Temporary Policy Ends.
8. Ensure that E-Verify queries were run and correctly closed, where applicable. 
9. Tidy things up, and ensure that you have the required “written documentation” outlining your “remote onboarding and telework policy for each employee” required by ICE in the original March 20, 2020 announcement.
10. Plan on scheduling an assessment of your company’s current state of immigration compliance oversight, management and related risks in September, after the long summer of 2023 and COVID I-9 updates are over.

How do I update my Forms I-9?

This is the tricky part. How you update your Forms I-9 will depend on whether you use paper I-9s or an electronic I-9 system. Each electronic I-9 vendor, hopefully, offers a specific workflow to update COVID I-9s. Companies using electronic I-9s should work with their vendor to:

• Understand how to identify remote COVID I-9s in the system;
• Confirm a workflow exists to update these remote COVID I-9s with a physical inspection; and,
• Ensure the system tracks the completion of updates to remote COVID I-9s.

As for how to update a Form I-9, government guidance is limited. Despite requests for further clarification, ICE and US Citizenship and Immigration Services (“USCIS”) have only provided partial (and somewhat contradictory) guidance for updating Forms I-9 once the physical inspection occurs (see USCIS examples here; ICE removed their narrative from the website).

The guidance is clearly tailored for paper I-9 completion and does not contemplate the substantial number of employers using electronic I-9 systems. Accordingly, judgment calls will need to be made, and companies should work closely with experienced compliance counsel to ensure there are no missteps.

Same Documents

If the employee presents the same documents that were presented virtually, employers should note in the Additional Information field “Documents Physically Examined” with the date of inspection. Do not forget to initial and date the comment.

Different Documents

Employees have their choice of documents to present for physical inspection updates. In the event an employee presents documentation that is different than the documentation presented for their remote verification, employers have two options:

1. Complete a new Section 2 (many electronic I-9 systems force a new I-9 due to system limitations) and note “Documents Physically Examined” with the date of inspection in the Additional Information Employers should then attach the new Section 2 to the original I-9; OR,
2. Record the new document information in the Additional Information box of the original Section 2 and note “Documents Physically Examined” with the date of inspection. Remember to initial and date your comment.

Different I-9 Completer

If the person who performed the remote inspection is not the person performing the physical inspection, USCIS guidance states that the new I-9 completer should indicate the date they physically examined the documents as well as their full name and title in the Additional Information field.

ICE representatives have stated that the preferred option would be to complete a new Section 2, thereby having the I-9 properly certified with the requisite attestation. Considering ICE will be doing I-9 inspections, this seems like a reasonable way to go but either choice will suffice. Remember to attach the new Section 2 to the original I-9.

For more information on COVID-19 policies, check out I-9 Central’s Questions and Answers Related to COVID-19 for additional FAQs.

What about Permanent Virtual and the New I-9?

The waiting game continues. There was so much excitement as the government finally issued their notice of proposed rulemaking (“NPRM”), Optional Alternatives to the Physical Document Examination Associated With Employment Eligibility Verification (Form I-9), in August of 2022. DHS is still considering these alternative procedures but we expect some sort of regulatory update by the end of the year. Whether or not the release of new Form I-9 will be tied to this is still uncertain.

For questions regarding I-9 compliance, internal immigration assessments, worksite enforcement audits, E-Verify compliance, Department of Labor immigration related wage and hour investigations, general H-1B compliance, and DOJ-IER anti-discrimination matters, please contact the Seyfarth Immigration Compliance and Enforcement group, or the author, Dawn Lurie, directly at dlurie@seyfarth.com.