Sunsetting of Form I-9 Flexibilities

The Department of Homeland Security (DHS) recently announced the termination of temporary Form I-9 flexibilities that were put into place in response to challenges of in-person document examination during the COVID-19 pandemic. Beginning in March 2020, DHS allowed for virtual examination of documents establishing identity and work authorization, with the caveat the documents must be physically examined in-person at a later date.

Well, that later date has come. These temporary flexibilities will sunset on July 31, 2023. Employers will then have until August 30, 2023, to perform the physical, in-person examination of any documents that were reviewed virtually since March 2020 and to annotate the Form I-9 accordingly.

What Does This Mean for Employers?

Employers that have been operating under these relaxed Form I-9 requirements and performing virtual review of documents have two, potentially daunting tasks leading up to these deadlines:

1. After July 31, 2023, all newly executed Form I-9s (and Section 3 reverifications) require physical, in-person document examination. Employers can no longer review documents virtually, even where the employee works remotely.
2. By August 30, 2023, employers must perform a physical, in-person examination of any Form I-9 documents that were reviewed virtually since March 20, 2020.

Historically, in-person examination of Form I-9 documents was not an issue as employees worked in brick-and-mortar offices, factories, and plants where employees physically came into the office each day. However, in a post-pandemic world where companies find themselves employing an increasingly remote workforce, in-person document examination has become more complicated. As of August 1, 2023, employers must once again physically examine documents in person to verify a new hire’s identity and ability to work in the United States. Employers will need to update existing policies and protocols moving forward if they have been relying on Form I-9 flexibilities and reviewing documentation virtually.  

Additionally, employers must ensure any Form I-9s executed since March 20, 2020 are brought into compliance by August 30, 2023, which includes physically reviewing any documents that were initially examined virtually (by email, video, fax).

Best Practices and Next Steps toward Compliance:

• Identify: Conduct an internal audit to identify all Form I-9s that were executed after reviewing supporting documents virtually since March 20, 2020.
• Establish and implement: Create and standardize processes to physically examine Form I-9 documentation before August 30, 2023. Consider using the following methods for physical examination:

1. Host company-wide events at company headquarters, local offices, and/or satellite offices, where employees bring their documents for physical examination.
2. Utilize notary publics for remote employees to limit the strain on HR and legal teams normally responsible for in-person examination.
3. Utilize an Authorized Agent/Representative to review the supporting documents and update the Form I-9. Designated Authorized Agents can be anyone the company authorizes to act on their behalf for these limited purposes, except for the employee themselves. The employer should review the updated Form I-9 to ensure compliance once the Authorized Agent/Representative completes the in-person examination.

• Train: Ensure your HR team is fully trained on documented protocols and procedures so that these processes are executed in a systematic and non-discriminatory manner. Regardless of the chosen method for in-person, physical examination of documents, employers must ensure these efforts are consistently applied, well-documented, and Form I-9s are correctly annotated/updated.
• Communicate: Transparency is critical. Send company-wide communications and consider hosting consolidated townhalls, information sessions, or video trainings so affected employees understand why they are being asked to bring in their physical documents.

How to Update Form I-9:

If the same employer representative who initially reviewed documents virtually now physically reviews the documents in-person, update the Form I-9 after physical, in-person examination in the Additional Information box with the following annotation: 

COVID-19 Documents physically examined on MM/DD/YYYY by [initials]

If anyone besides the initial reviewer reviews the documents in-person, the recommended practice is to execute a new Section 2 so the reviewer can sign the attestation in Section 2. This newly executed Section 2 should be attached to the original Form I-9. Employers should then update the Additional Information box on the original Form I-9 with the following annotation: 

COVID-19 Documents physically examined on MM/DD/YYYY by [name]

Employers should anticipate some challenges and questions during this process. U.S. Citizenship and Immigration Services has provided some helpful Frequently Asked Questions to guide employers:

Q: What if the employee is no longer employed with the company?

A. Update Form I-9, Section 2 with an explanation in the Additional Information box.

Q. What if the employee provides different acceptable documents than those initially provided?

A. Execute a new Section 2 with the new documents and attach to original Form I-9.

Q. What if Employee refuses to provide documents?

A. Employers are required to physically examine documents. An employer cannot knowingly retain an employee who is unauthorized to work in the United States or that does not fulfill Form I-9 documentary requirements. Please contact your Quarles immigration attorney for further guidance if you encounter this issue.

Q. What if the documents were valid at the time of virtual review, but are now expired?

A. As long as the document was valid during remote examination, the employer should not request a new document and can proceed with the physical examination.

Form I-9 compliance is more critical than ever as the federal government continues to allocate funds towards Form I-9 audits and investigations. Additionally, with the recent Florida legislation highlighting immigration concerns, employers are advised to review internal files to remediate technical deficiencies and ensure Form I-9 records are inspection-ready.

If you have any questions about bringing your Form I-9s into compliance as the COVID-19 flexibilities sunset, please contact your Quarles attorney or:

Emily Shircel (414) 277-5217 / emily.shircel@quarles.com

Tim D’Arduini (202) 780-2641 / timothy.darduini@quarles.com