Employers Face August 30 Deadline to Physically Examine Pandemic Hires’ I-9 Identity and Work Eligibility Documents

Update 07/27/23: On July 25th, the U.S. Department of Homeland Security published a final rule creating the framework for an optional virtual alternative to the in-person physical document examination process. This alternative virtual inspection process is available beginning August 1st to certain employers who are E-Verify users in good standing. For more information, please contact Orrick's Employment Law team.

Employers have until August 30 to physically examine identity and employment eligibility documents of certain employees hired in the pandemic. Many employers have been reviewing those documents remotely since the federal government eased an in-person examination requirement just as COVID-19 began to spread widely in the United States.

What Happened?

Federal law requires employers to complete a Form I-9 to verify the work eligibility of each new hire. That process traditionally has involved an employee completing part of Form I-9 and presenting identity and work authorization documents to an employer. The employer (or the employer’s representative) would inspect the documents in the employee’s presence and use them to complete Form I-9.

In March 2020, however, the U.S. government changed that requirement for some organizations with employees working remotely due to the pandemic. Regulators let employers remotely inspect documents, such as those shared by email or videoconference.

That practice—referred to by some as the “I-9 Flexibilities”—applied to certain employers who were taking physical precautions due to COVID-19. It required companies to physically inspect documents once normal business operations resumed and/or when a particular employee was no longer temporarily working remotely because of COVID-19.

The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have now announced the expiration of that guidance.

What Should Employers Do Now?

Employers must complete in-person, physical inspections of employee documents that had been remotely inspected pursuant to the flexibility guidance by August 30. Employers should:

• Complete the physical inspection for applicable workers and note the reason for a physical inspection delay on Form I-9. The DHS provided guidance and examples on how to notate Form I-9 when remotely inspecting employment authorization and identity documents and subsequently inspecting them in person.
• Only where applicable, explain why they could not physically inspect a given file by August 30, leaving a note in the applicable I-9 file to make the unique circumstances clear in the event of an audit.
• Update internal I-9 processes and controls if applicable to set up a proper in-person verification process for new hires.

What About Companies With Remote HR Operations?

Given the emergence of an increasingly remote workforce, some employers have most of their HR operations run remotely. Since the physical I-9 inspection requirement applies to them, too, employers may consider leveraging an “authorized representative” to inspect the identity and work authorization documents. An authorized representative can be any person the employer designates to complete and sign the Form I-9, such as:

• A vendor, such as a payroll or HR service provider. In the current climate, a growing number of vendors appear to offer such services.
• A notary may be able to assist in some places subject to any state restrictions (California limits a notary’s ability to complete the I-9 unless the notary also is a qualified and bonded immigration consultant, for example). There also could be professional limitations, such as a notary’s ability to charge for such services.
• A friend, relative or neighbor. Some employers let new hires select someone nearby, such as a member of their household, to physically inspect documents on behalf of the employer.

Employers who use an authorized representative should remember that they will be liable for any violations related to Form I-9 or the verification process, including by the person acting on the employer’s behalf. Employers should give careful instruction and implement sufficient controls when leveraging authorized representatives, and they should review executed I-9s for completeness and accuracy.

Practically speaking, the August 30 deadline presents an opportunity for employers to audit I-9 files and practices. We recommend reviewing I-9 records as soon as possible, given the fast-approaching deadline, to ensure ample time to deal with unanticipated complexities.

What’s Ahead?

There is a possibility that authorities may let employers review documents remotely in the future. Last year, the DHS published a Notice of Proposed Rulemaking for procedures allowing remote document examination for Form I-9. That proposal has not been formally implemented, though, so employers should not rely on it to avoid physical document review when the temporary virtual flexibilities expire.