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The Department of Homeland Security (DHS) recently announced that flexibility measures related to the inspection of identity and work eligibility documents enacted during the COVID-19 pandemic will end on July 31, 2023. Employers must physically inspect all identity and work eligibility documents used to support a Form I-9 completed remotely during the pandemic by August 30, 2023. 

In March 2020, DHS allowed employers taking “physical proximity precautions” due to COVID-19 to remotely verify identity and work eligibility documents used to support an I-9. If employees were physically present at a work location, DHS allowed no exceptions to the rule that documents must be physically inspected. The exception applied only to employers and workplaces that operated remotely. And once employees returned to a physical workplace, the employer was required to inspect documents physically. The exception caused confusion for some employers that took the exception to mean that remote inspection of documents was permissible for all remote employees.  

On March 31, 2021, DHS clarified that the requirement to physically inspect documents during the pandemic applied to employees who physically reported to work at a company location on “any regular, consistent, or predictable basis.”   

DHS now returns to the rules in place when COVID-19 interrupted workplaces. Employers must physically inspect identity and work eligibility documents for all employees. Employers have only 30 days to determine which employees’ identity and eligibility documents were not physically inspected upon hire and to physically inspect those documents. And employers must physically inspect all documents after July 31, 2023. Consult this Employers Council whitepaper for full guidance.  

There are no exceptions for remote employees. Employers with remote employees who are not near the employer’s work locations must arrange for the physical inspection of documents. The employer may appoint any agent to inspect the documents and sign the verification in Section 2 of the I-9. The representative could be, for example, another company employee living in that area or a notary public. But the employer is liable for the actions of its agent if the agent does not complete the inspection and the I-9 properly. Many employers use a notary public. Note that if a notary public completes Section 2, they should not affix a notary seal but should only sign Section 2, just as any employer representative would do. 

On the positive side for employers, relief may be on the way. On August 8, 2022, DHS published a proposed rule that would allow it to consider alternatives for document examination procedures, including reviewing employees’ documents remotely. It is possible that DHS will announce the new rule when the prior flexibility measures sunset on July 31, 2023, but there are no guarantees that will happen. Employers should take steps now to physically inspect the identity and work eligibility documents of all employees whose documents were not inspected physically. This is an excellent time to conduct an audit of I-9 files and correct any deficiencies not related to COVID-19. And employers should plan now to physically inspect the documents of all new employees moving forward until the DHS announces a new rule allowing permanent flexibility in document inspection methods. If you have any questions, please contact the Employers Council Member Experience Team.