Are Major Changes in the Form I-9 on the Horizon?


For more than thirty years, employers have been required by federal law to complete the Form I-9 in order to verify their new hires are authorized to work in the U.S. One of the central components of this process is the employer’s duty to physically examine the employee’s identity and work authorization documents within the worker’s presence. However, after all this time, it appears as if a change in the process may be on the horizon.

The ongoing pandemic has presented employers with considerable challenges in balancing safety and compliance issues. In order to help employers and ensure that employment eligibility verification does not prevent them from protecting the safety of their employees and workplaces, the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) has permitted employers to meet the inspection requirements through varying guidance since March 20, 2020.

The DHS has permitted employers that are allowing employees to work remotely in response to COVID-19 precautions to postpone physical inspection of employment eligibility documents. In these cases, an employer may instead verify an employee’s identity work authorization documents through remote means such as a video call, email, or fax. Then once the employee comes into a physical workplace on a regular, consistent, or predictable basis, the documents must be verified physically within three business days. Depending on when this occurs, it is possible the DHS will end this policy first, in which case the verification must occur within three days of this date instead. At first, the DHS extended this policy in two-month increments, however in August and December of 2021, the DHS began renewing the policy in four-month increments, with expiration now set to occur on April 30th, 2022.

Recently the DHS has announced that it is seeking input on the idea of a permanent remote examination option. The DHS has invited employers to submit comments regarding their own experiences with the flexibility examination policy during the pandemic.

Given the continued extensions of the flexibility policy and the request for input, the DHS is clearly mulling the possibility of making a permanent remote option. With the change in so many workforces to include remote and flexible workers as well as the continued impact of the pandemic, it seems likely that employers may see major changes in I-9 requirements in the near future.

Employer Takeaways

Form I-9 requirements are constantly changing, and it can be difficult for employers to keep up with them. Unfortunately, this can result in major penalties. The best way to keep up and ensure your workplace remains in compliance is with an electronic I-9 management tool. This can guide hiring personnel through every step and ensure documents are properly stored for review whenever they are needed.