The Form I-9, officially the Employment Eligibility Verification, is a United States Citizenship and Immigration Services (USCIS) form. Mandated by the Immigration Reform and Control Act of 1986, it is used to verify the identity and legal authorization to work for all paid employees in the United States. On the form, an employee must attest to their employment authorization. The employee must also present their employer with acceptable documents as evidence of identity and employment authorization. The employer must physically examine these documents to determine whether they reasonably appear to be genuine and relate to the employee, then record the document information on the employee’s Form I-9. Understanding I-9 Requirements for Remote Workers
In March 2020, the Department of Homeland Security (DHS) put into place a temporary exemption which allowed employers to temporarily defer the physical presence requirements associated with the Form I-9 due to the COVID-19 pandemic. Under the temporary exemption, employers who were operating remotely due to the pandemic could inspect Section 2 documents remotely (e.g. over video conference or email), and then provide written documentation of their remote inspection within three business days of the employee’s first day of work. This was a temporary measure to help employers comply with the Form I-9 requirements while minimizing the risk of exposure to COVID-19.
This exemption expired on July 31, 2023. Now that the exemption has expired, employers must once again comply with the standard Form I-9 requirements, which include physically inspecting the employee’s documents in person within three business days of the employee’s first day of work. Additionally, any employees whose documents were remotely inspected from March 2020-July 2023 now need to have their documents physically re-inspected by August 30, 2023.
Beginning August 1, 2023, employers must physically inspect I-9 document s for all new employees, regardless of if the employees work remotely or in an office. Employers who have used remote verification policies from March 2020-July 2023 will need to physically inspect documents for all employees whose documents were remotely inspected at the time of hiring.
Physical inspection means that an employer can no longer rely on Zoom, email, or any other method of remote verification. A designated person acting on the employer’s behalf must review the physical documents in-person.
Employers can use an “authorized representative” to complete in-person document inspection on the employer’s behalf. Employers have broad authority to designate a representative, including a notary, a member of the employee’s household, or a third party hired by the employer. Employers should be aware that the authorized representative is acting on their behalf, and the employer will be held liable for any errors made by the authorized representative. Thus, the employer should still review the I-9 for accuracy after it has been completed by the authorized representative.
On July 25, 2023, DHS announced that employers enrolled in E-Verify during the COVID-19 exemption may use an alternative procedure to satisfy the requirement of physically examining the I-9 documents. Employers who meet four requirements may choose an alternative procedure in lieu or physically examining I-9 documents. The four requirements are that the employer must have:
Employers who do not meet all four requirements must perform an in-person physical examination of documents by August 30, 2023. If an employer meets all requirements and chooses to use the new alternative procedure, they must remotely examine the employee’s Form I-9 documents by conducting a live video interaction for each employee whose documents were examined remotely under the temporary flexibilities but never in-person physically examined.
Employers who were not enrolled in E-Verify when they performed remote examination of employees’ I-9 documentation under the COVID-19 exemption must complete an in-person physical document examination by August 30, 2023.
For new employees, USCIS will allow employers to enroll in E-Verify and use it for remote inspection of new employees’ I-9 documents.
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*This blog does not constitute solicitation or provision of legal advice and does not establish an attorney-client relationship. This blog should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction.*