October 26, 2022

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U.S. Immigration and Customs Enforcement (ICE) have announced that the Form I-9 flexibilities introduced in response to the COVID-19 pandemic have extended again. The deadline for these flexibilities should have been October 31st, 2022, but it is now July 31st, 2023.

Under these flexibilities, employers may continue to review eligible employees’ documentation for I-9 verification using remote means. These means include fax, email, or video calls until the earlier expiration of the policy on July 31st, or three days after the national COVID-19 emergency ends. Eligible employees include those:

• Hired on or after April 1st, 2022; and
• Who work exclusively in a remote setting.

The timeline for completing the documentation inspection is unchanged by these flexibilities. In addition, employees onboarded without a physical document inspection on or after April 1st, 2021, must have their documentation inspected in person within three days of the close of this policy or upon beginning non-remote work on a regular, consistent, or predictable basis.

Employers may choose to perform the physical inspection before the expiration of these flexibilities. In many cases, this would be wise if the employer has a large workforce or remote workers, requiring coordinating with a third-party agent. Furthermore, it may be hard to fit all the necessary verifications within a three-day completion window. Finally, it is crucial to perform these inspections in a consistent and non-discriminatory manner.

In some cases, employers may be unable to complete the in-person verification of an employee’s documentation. For example, when the employee is no longer working for the employer. In these cases, ICE instructs employers to include a memorandum with the completed Form I-9 explaining the reason for the inability to complete the inspection. Such instances can expect a case-by-case consideration in the event of a Form I-9 audit.

With these continued flexibilities, many employers may be questioning if the Department of Homeland Security (DHS) has any plans to make these remote flexibilities permanent. For instance, the DHS issued a notice of proposed rulemaking in August. This proposal looked to provide a framework under which the department could introduce pilot programs for alternative verification methods and permanent alternatives after determining that they offer the equivalent or greater levels of security.

As these continued changes show, keeping up with the regulatory environment surrounding Form I-9 can be challenging. Because of these shifting changes, the best way to ensure continued compliance is to invest in an electronic Form I-9 management system. This system can provide step-by-step guidance and ensure uniform completion and storage of Form I-9.

Make things a little less complicated for your business by automating your employment eligibility verification and ensuring compliance with I-9 Compliance.

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