Many employers have adopted flexible working policies as a result of the COVID-19 pandemic, allowing their employees to work remotely on a part-time or even full-time basis. As an employer with flexible working policies, you may have been taking advantage of the Department of Homeland Security’s (DHS) temporary deferral of the requirement that you physically inspect your employees’ identity and employment authorization documents in person at the start of employment, as part of the process for completing the Form I-9, Employment Eligibility Verification. If you have been remotely inspecting your employees’ documents, be aware that this practice will no longer be permitted after October 31, 2022. You’ll have to return to performing in-person inspections for all newly onboarded employees. You’ll also have to go back and perform physical inspections for all those employees whose documents were inspected remotely and update their Form I-9s accordingly. This applies even if your workforce continues to be fully remote.
All employers in the United States must complete a Form I-9 – issued by DHS’s U.S. Citizenship and Immigration Services – for each individual they hire, whether they are citizens or noncitizens. Typically, to complete Form I-9, each employee must physically present certain documents (listed on Form I-9) proving their identity and employment authorization within three business days of starting work. The employer must then examine these documents in the employee’s physical presence to determine whether the documents “reasonably appear to be genuine and relate to” the particular employee.
When the pandemic hit in March of 2020, DHS exercised its discretion to temporarily defer this physical presence requirement and instead allow certain employers with remote workforces to collect, inspect, and retain their employees’ identity and employment authorization documents remotely, through platforms such as Zoom, email, fax, etc., until they could safely perform in-person inspections. The deferral was originally set to expire later in 2020, but because of the ongoing public health emergency, it has been extended several times and now is finally expiring on October 31, 2022. This means that as of November 1, 2022, all newly onboarded employees must undergo the in-person Form I-9 verification process. And, by November 3, 2022, all employees who were onboarded through remote verification must report to their employers in person to verify their documentation for Form I-9, if they have not done so already. (Note that employees who have been physically present at their work locations “on any regular, consistent, or predictable basis” should have already reported to their employers for in-person verification.) Once the employer has physically inspected the documents, it must update the employee’s Form I-9 by adding “documents physically examined” to Section 2 or 3, as appropriate. More specific information about I-9 compliance and instructions can be found on the USCIS website at https://www.uscis.gov/i-9 and at https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3.
It is important that employers strictly comply with DHS’s Form I-9 requirements. If you have any questions about whether you are in compliance with these requirements, or about how to prepare for the upcoming October 31, 2022 Form I-9 flexibility deadline, please reach out to Jeff Meyer, Sandy Schlesinger, or another member of Venable’s Labor and Employment law team.