Since March 2020, the federal Department of Homeland Security (DHS) has permitted employers the flexibility to engage in remote review of certain new employees’ proof of their identity and authorization to work in the United States. At the end of July 2023, those flexibility rules will sunset – although businesses will have until the end of August to fully comply. Beginning in August, DHS and its Immigration and Customs Enforcement (ICE) office will require all employees, including those hired during the pandemic, be subject to in-person review of their supporting documentation. Therefore, employers that have not been conducting in-person review of required I-9 documents must act immediately to do so.
Under pre-pandemic rules, DHS required employers to inspect each new hire’s identification and employment verification documents in-person no later than three business days following the employee’s first day of work. Employers could work with an authorized representative to assist in this review for remote workers. Such representatives could include attorneys, notaries, other remote staff, and others – including even the family or neighbors of the new hire – provided that the employer was comfortable assuming the liability associated with the representatives’ review.
Beginning in March 2020, DHS instituted exceptions for employees working exclusively in a remote setting due to COVID-19, allowing businesses to be deemed compliant with I-9 inspection requirements provided that they (1) conducted a remote review of employee documents and (2) inspected the documents in-person upon a return to normal business operations. DHS stated that employers availing themselves of this option should provide written documentation of their applicable remote onboarding and telework policies for each affected employee. DHS also instructed that, when the in-person examination of documentation occurred, employers should note the review date on the employee’s I-9. This flexibility has remained in place for all those who did not report to a company location on a regular, consistent, or predictable basis.
DHS extended its flexible rules multiple times throughout the pandemic but they now are scheduled expire at the end of July. Reflecting the way business has changed since the pandemic, though, DHS also has published a Notice of Proposed Rulemaking for a permanent remote procedure for review of immigration documents. In May 2023, however, the agency stated that, while its proposed rules for remote inspection remain pending, it did not intend to extend the pandemic era flexibility rules again. Instead, it will give employers an additional 30 days – until August 30, 2023 – to achieve compliance with regard to all hires made since the beginning of the pandemic and to institute a practice by which all new employees will have their documentation reviewed in-person once again. Therefore, employers who have not conducted in-person reviews of employees’ documents should move quickly to establish such a program as soon as possible. To do so, employers may either require employees to report to a company location to have their documentation reviewed or work with an authorized agent to have documents inspected in a location more convenient to the employee. Employers should also continue to monitor DHS pronouncements concerning enforcement of its traditional rules and the possibility of instituting flexible rules on a permanent basis in the future.