COVID-19 Temporary Flexibilities for Form I-9 Ending

By Melina LaMorticellaTurid OwrenAlan Perkins, and Melany Savitt

The U.S. Immigration and Customs Enforcement (ICE) announced that its COVID-19 temporary flexibility policies for Form I-9 will end on July 31, 2023. Employers relying on the COVID-19 temporary flexibilities for Form I-9 should plan ahead to ensure that all required in-person physical inspection of Form I-9 documentation is completed by August 30, 2023.

At the start of the COVID pandemic, ICE issued temporary policies deferring the requirement that employers perform in-person physical inspection of identity and employment authorization documents for new hires. The March 2020 COVID-19 temporary flexibility policies for Form I-9 allowed remote I-9 document inspection with the understanding that employers would physically inspect documentation within three business days after normal operations resumed. Additional ICE guidance clarified that employers could rely on the COVID-19 flexibility policy for Form I-9 until non-remote employment resumes on a regular, consistent, or predictable basis, or the COVID-19 flexibility policy for Form I-9 is terminated, whichever is earlier.

On May 4, 2023, ICE declared the termination of the COVID-19 flexibilities effective July 31, 2023. This means that starting August 1, 2023, employers must physically inspect I-9 documentation regardless of remote or hybrid work policies. ICE also gave employers until August 30, 2023 to perform all required physical examination of identity and employment eligibility documents for individuals hired on or after March 20, 2020, and who have only received a virtual or remote examination under the flexibilities. This announcement gives employers additional time to complete in-person physical inspection of identity and employment authorization documents, and to annotate the Form I-9.

The U.S. Department of Homeland Security has provided guidance on notating Form I-9 when conducting an in-person physical inspection after remotely inspecting employment authorization and identity documents.

This client alert is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have any questions regarding this update, or for more information about this topic, please contact any of the attorneys in our Immigration Practice Group, or the attorney with whom you normally consult.

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