ICE Extends Flexible I-9 Rules for Remote Workers Through July 2023
The United States Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) agency recently announced an extension through July 31, 2023 of compliance flexibility related to Form I-9 employment eligibility verification requirements. ICE first announced its I-9 flexibility policy in March 2020 for workplaces operating remotely due to the COVID-19 pandemic, and ICE extended the policy numerous times. The policy originally stated that employers would not be required to inspect I-9 documents in the physical presence of employees until the resumption of “normal operations,” and that employers instead would be allowed to review such documents virtually.
With the COVID-19 flexibility policy coming to an end, DHS is now encouraging employers who have been utilizing the flexible inspection procedures to ensure that all required physical inspection of identity and employment eligibility documents is completed by August 30, 2023. This applies to employees hired on or after March 20, 2020 who have received a virtual or remote examination under the temporary flexibility policy.
For fully remote employees, ICE has confirmed that anyone the employer designates may be an “authorized representative” for completing Section 2 of the Form I-9 and the physical document inspection. A representative could include, for example:
- A member of the employee’s household (although this approach presents potential problems);
- A designated agent (like a notary); or
- A third-party agency hired by the employer.
Note that the employer will remain liable for errors or omissions on the Form I-9, regardless of who completes it. Employers who use an “authorized representative” other than a company employee for verification should prepare instructions for their representative and be available to that individual to answer questions during the verification process. Employers also should review the completed I-9 as soon as possible to correct any errors before the employee’s fourth day of employment, thereby reducing any potential employer liability.
In addition, United States Citizenship and Immigration Services has provided guidance on how to annotate a previously completed Form I-9 to note a subsequent physical inspection of identity and employment eligibility documents.
Moreover, the issue of remote verification of I-9 documents likely will be revisited later this year. As a response to the COVID-19 pandemic and its impact on remote work, DHS issued a proposed rule that would allow for alternative procedures for the examination of identity and employment eligibility documents. DHS currently is reviewing public comments and plans to issue a final rule later this year.
Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding human resources compliance issues. For all MEA members, the Hotline is available to provide this assistance. For MEA Essential and Premier members, a Member Legal Services attorney is available for additional consultation.
For more information on this topic, please join us for our Weekly Town Hall Webinar on July 11 at 11 AM when we will be joined by immigration attorney Chris Thorn of Buchanan. Chris will be discussing this and other immigration issues.