COVID-related Form I-9 Remote Verification Flexibilities Extended Through July 31, 2023

05 December 2022 Labor & Employment Law Perspectives Blog
Author(s): Roy J. Barquet

On October 11, 2022, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension through July 31, 2023 of Form I-9 remote verification flexibilities first announced in March 2020 and later updated in March 2021.

The March 2020-announcement, issued in response to COVID-19 public health guidance and precautions, enabled DHS to exercise prosecutorial discretion to defer physical presence requirements for the Form I-9, Employment Eligibility Verification under Section 274A of the Immigration and Nationality Act (INA). Under this exception, employers and workplaces operating remotely due to COVID-19 are not required to review an employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Form I-9 Section 2 documents remotely (e.g. video conference, fax, email, etc.) and obtain, inspect, and retain copies of the documents within three (3) business days of employment for purposes of completing Section 2. Once normal operations resume, employers are required to physically examine the documents of previously onboarded remote employees.

This exception never applied to employees physically present at an employer’s work location.  However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate in-person verification requirements on a case-by-case basis. Employers are required to enter “COVID-19” as the reason for the physical inspection delay in the Form I-9 Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add a “documents physically examined” notation with the date of inspection to the Form I-9 Section 2 Additional Information field, or to section 3 as appropriate. 

The March 2021 update provided that as of April 1, 2021, the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis. If employees hired on or after April 1, 2021, work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the physical inspection requirements associated with Form I-9 until they undertake non-remote employment on a regular, consistent, or predictable basis, or until the extension of the Form I-9 flexibilities is terminated, whichever is earlier.

DHS has recognized that because of the COVID-19 pandemic, more employers have adopted permanent remote work arrangements. DHS is currently exploring alternative options that would include making permanent as of August 1, 2023 some of the current COVID-19-related flexibilities to examine employees’ identity and employment authorization documents. On August 18, 2022, DHS and ICE issued a Notice of Proposed Rulemaking that proposes alternative procedures for documents required by Form I-9. The proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternative options for document examination procedures for some employers. The proposed rule, still in draft mode and targeted for August 1, 2023-promulgation, would allow employers optional alternatives for examining the documentation presented by individuals seeking to establish identity and employment authorization for purposes of completing the Form I-9.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services