The U.S. Department of Homeland Security (DHS) recently announced that employers will have until August 30, 2023 to comply with the Form I-9 physical verification requirements after the temporary COVID-19 flexibilities sunset on July 31, 2023. Employers who took advantage of the temporary flexibilities should begin completing physical inspections for employees whose documentation has only been virtually inspected to ensure they comply with the August 30th deadline.

COVID-19 Form I-9 Flexibilities

The United States Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS), requires employers to complete and maintain a Form I-9 (Employment Eligibility Verification) for each employee. As a part of the I-9 process, employees are required to present documentation that establishes their identity and eligibility to work in the U.S. Employers (or an authorized representative) must physically examine, in the employee’s physical presence, the unexpired documentation to complete Section 2 of the Form I-9. This examination must occur within 3 business days of the employee’s first day of employment.

During the COVID-19 pandemic, employers and employees were taking physical proximity precautions due to COVID-19. As such, in May 2020, the DHS issued temporary flexibilities that allowed employers to defer the physical inspection of Form I-9 Section 2 documentation for employees working remotely due to COVID-19. Instead, employers could remotely review (e.g., over video link, fax, or email) I-9 documentation for these employees.

Under the temporary COVID-19 flexibilities:

  • For employees hired on or after March 20, 2020, and who exclusively worked in a remote setting due to COVID-19 related precautions, employers can remotely inspect their I-9 documentation. For these employees, employers would note in the Additional Information section of the Form I-9: “Remote inspection completed on [mm/dd/yyyy]” (see example of this notation here).
  • For employees who physically report to work at a company location on any regular, consistent, or predictable basis, employers are still required to physically inspect required documentation within 3 business days of an employee’s first day of employment. There is no change to the requirements for completing Section 2 for these employees.
  • For permanent remote employees who are allowed to work from anywhere and are never expected to return to an in-person setting, the flexibilities do not apply. For these remote employees, employers can use an authorized representative to complete the physical verification requirements (the authorized representative process is discussed below).

The temporary I-9 flexibilities are set to sunset on July 31, 2023. DHS recently announced that employers will have 30 days (instead of the “normal” 3 day requirement), or until August 30, 2023, to reach compliance and complete physical inspections after the flexibilities sunset.

Employer Action

Employers will have until August 30, 2023, to complete any remaining physical document inspections for employees whose documents, to date, have only been inspected remotely consistent with the temporary flexibilities. An employer representative or authorized representative must physically review the required documentation.

For employees who are still working remotely, employers may want to satisfy the physical verification requirement by designating an authorized representative to conduct the physical verification. The authorized representative may be the employee’s family member, friend, notary (but not one being paid to perform the service), or another designated person. It is important to note that employers are liable for any violations in connection with the form verification process committed by the person they designate as an authorized representative.

Once an employer representative or authorized representative physically examines an employee’s documentation, they should add the appropriate notation on the employee’s Form I-9:

  • If the same representative conducts virtual and physical inspection, the representative should add in the Additional Information section: “Documents physically examined on [mm/dd/yyyy] by [initials of examiner]” (see an example of the notation here).
  • If a different representative conducts the physical inspection, the representative should add in the Additional Information section: “Documents physically examined on [mm/dd/yyyy] by [examiner’s full name and title]” (see an example of the notation here).
  • If an employee presents different (but still acceptable) documentation for the in-person inspection than was provided for the virtual inspection, the employer may either (1) complete Section 2 on a new Form I-9 and attach it to the Form I-9 used for remote inspection or (2) provide the document title, document number, issuing authority, and expiration date (if any) of the new document in the Additional Information field and note the employee presented this document at physical inspection. As best practice, the DHS recommends option 1. See the I-9 FAQs Related to COVID-19.

Employers should begin completing the physical inspections now, as employers may have a large population of employees who onboarded using virtual verification.

Additional Resources

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Emerald Law — Emerald is a Senior Compliance Consultant for Sequoia, where she works with our clients to optimize and streamline benefits compliance. In her free time, Emerald enjoys stand-up comedy, live music, and writing non-fiction.