DHS Grants Additional Time for Full Form I-9 Compliance after Temporary Flexibility Procedures End and Provides Update on Future Remove Verification Rule

08 May 2023 Labor & Employment Law Perspectives Blog
Author(s): Anita M. Sorensen

In a May 4, 2023, announcement, the U.S. Department of Homeland Security (DHS) granted employers through August 30, 2023, to complete the physical document inspection required for Form I-9, Employment Eligibility Verification, after relying on the COVID-19 temporary I-9 flexibility procedures. This is an extension of about thirty days from the previous deadline.

Termination of the COVID-19 Form I-9 Temporary Flexibility Procedures

To deter fraud, current I-9 rules require that employers meet in person with new hires (or existing employees if reverification is required) and physically inspect the documents presented for identity and employment eligibility verification. COVID-19 made such in-person meetings difficult. DHS responded in March 2020 by implementing the I-9 temporary flexibility procedures to defer the physical inspection of documents. These procedures allowed qualifying employers to review I-9 documents virtually and later complete the in-person document inspection. That physical inspection was to occur within three business days after the employer resumed normal business operations or the government terminated the temporary flexibility protocols. In October 2022, DHS announced that it would end the I-9 temporary flexibilities on July 31, 2023. Employers thus were required to complete the physical document inspection for those I-9s shortly after the sunset of the temporary procedures. Now, DHS is granting employers additional time to complete that physical inspection (to August 30, 2023).

Physical Document Inspection and Annotation after relying on COVID-19 Temporary Flexibility Virtual Inspection

By the end of July 2023, DHS will have allowed the temporary flexibilities to run for about forty months. During this more than three-year period, most employers relied on the temporary flexibilities to complete at least some of their I-9s. Such employers should review the I-9s that were completed or reverified since March 2020 and confirm that these I-9s show a physical document inspection. For those Form I-9s that are missing this inspection, employers should schedule meetings with current employees as soon as possible. After completing the in-person physical document inspection, employers must update the Additional Information field in Form I-9, § 2.

COVID-19: Documents physically examined on mm/dd/yyyy. [Follow this entry by recording the initials of the employer’s representative if the same person who completed the virtual document inspection also completes the physical document review; if a different person reviews the documents, state the new person’s full name and job title]

Employers that use electronic I-9 software may have difficulty making the required entries in the Additional Information field. Such employers may use a paper Form I-9 to complete the Additional Information entries. Those employers should produce the electronic Form I-9 and the associated paper Form I-9 during a government I-9 inspection.

As to I-9s for former employees completed under the temporary flexibility procedures, employers should determine whether the I-9 is still within the retention period. Employers must retain the Form I-9 for the longer of three years after the date of hire or one year after the date of termination. For those I-9s completed early in the COVID-19 pandemic or for some of the I-9s that were subject to reverification, it is possible that they are outside of the retention period. Employers can purge such I-9s. If the Form I-9s are still within the retention period, employers must try to comply with the physical document inspection requirement. If employers cannot locate their former employees or the former employees will not cooperate with a physical document inspection, employers may write a note in the Additional Information field to explain the absence of physical document review.

COVID-19: Employee separated employment on ________ before physical document inspection could be completed. [Follow this entry by recording the initials of the employer’s representative if the same person who completed the virtual document inspection also makes this entry; if a different person makes the entry, state the new person’s full name and job title]

Employers should complete the annotation by August 30, 2023.

Possible I-9 Fines for Noncompliance with August 30, 2023 Deadline

Employers that do not bring their Form I-9s into full compliance by the deadline may be subject to paperwork fines in a future I-9 inspection. If Immigration and Customs Enforcement (ICE) also determines that some of the employees who are named in the flawed I-9s are not authorized to work, ICE may impose fines for knowingly employing unauthorized individuals. As of January 2023, I-9 penalties are as follows:

  • I-9 Paperwork Deficiencies: $272 to $2,701 per Form I-9
  • Knowingly Employing Unauthorized Alien (First Order): $676 to $5,404 per violation
  • Knowingly Employing Unauthorized Alien (Second Order): $5,404 to $13,508 per violation
  • Knowingly Employing Unauthorized Alien (Third or More Order): $8,106 to $27,018 per violation

Future Rule Allowing Alternate Procedures for I-9 Document Inspection

We updated you in late 2022 that DHS is preparing a new version of the Form I-9 and that DHS is considering whether to implement a permanent remote verification option for employers to complete § 2 of Form I-9. In its May 4, 2023, announcement, DHS stated that later in 2023 it anticipates issuing a final rule on alternative procedures for employers to examine identity and employment eligibility documents. DHS did not provide an update on the scope of the alternate procedures. Our prior post summarized what DHS has been considering, which includes a limit on which employers may use the alternate procedures and special training for such employers. When the new rule becomes effective, DHS also is likely to implement the new version of Form I-9.

We will continue to provide updates on these developing I-9 issues.

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