I-9 form completion flexibilities ending 7/31/2023

Remote I-9 Ends

The Department of Homeland Security (DHS) extended the COVID-19 remote completion flexibilities for Form I-9, effective November 1, 2022  but will now end as of July 31, 2023. SHRM is concerned that the sunsetting of the pandemic-related Form I-9 flexibilities that permit the remote inspection of employee identity and employment authorization documents do not overlap with the possible implementation of a more permanent rule. SHRM is advocating that DHS extend these flexibilities until a final rule is implemented to mitigate confusion and provide clarity for employers and HR professionals. Note: Unfortunately, no permanent virtual document review option is currently available for Form I-9 completion. Hiring managers and HR professionals should resume pre-pandemic verification until further updates can be released

DHS clarified its guidance regarding the scope of the remote flexibility policy employers must inspect employees' Form I-9 identity and employment eligibility documentation in-person for those employees who physically report working at a company location on any regular, consistent, or predictable basis. Thus, for any employee hired or re-verified after APRIL 1, 2021, employers were temporarily exempted from in-person verification requirements for Forms I-9 when the position was fully remote with no expectation of the employee returning to an employer worksite on a regular and consistent basis.

What if the company's representative completed Forms I-9 using the remote policy or continued to use the remote policy when employees were physically present on-site at the workplace? Below are five considerations:

1. Compile a List of Forms I-9 completed using remote verification for active employees and prepare a memo to attach to Forms I-9 completed for inactive employees using remote verification, which cannot be updated by in-person verification.
2. Advise those on the list to review the instructions to Form I-9 and the acceptable documents listed on the Form I-9 and to establish a date as soon as possible with the designated company contact to present their chosen original documents for identity and employment verification purposes.
3. Establish a process for the review by the employer's designated representative of the documents in person.
4. Continue or start the process of in-person document review with the goal of completing in-person review before July 31, 2023.
5. Use the posted guidance on how to update Form I-9 when remote verification is used. DHS provides the following examples:

If the person who performed the remote inspection cannot also perform the physical inspection, the person who performs the physical inspection should indicate the date they physically examined the documents as well as their full name and title in the Additional Information field.

Employers should make required notations for remote and subsequent physical inspections of reverifications in the Additional Information field in Section 2. If the same person performs both the remote and subsequent physical inspections for a reverification, complete as shown. If a different person performs the physical inspection, that person should write their full name and title instead of their initials.

Form I-9 Remote Flexibility Ends July 31, 2023 – 5 Things To Keep In Mind (mondaq.com)

Commentary by: Raylea Stelmach

Edited by: Jessica McIntosh