Update: Form I-9 Requirement Flexibility Ending July 31, 2023

On May 4, 2023, the US Department of Homeland Security (DHS) and US Immigration and Customs Enforcement (ICE) announced that the Form I-9 COVID-19 flexibility policy will end on July 31, 2023. Our May 2023 alert discussed these changes in detail.

In short, effective July 31, 2023, all employers must perform an in-person inspection of identity and employment documents for new hires, even if they do not report to a company location. In addition, employers who have been using temporary flexibilities to complete I-9s remotely must perform the required physical inspection of identity and employment eligibility documents by August 30, 2023. This applies to employees hired on or after March 20, 2020 and who have received a virtual or remote examination under the flexibilities policy.

USCIS has provided guidance on how to annotate a previously completed I-9 form to note a subsequent physical inspection of identity and employment eligibility documents.

A number of employers have asked practical questions regarding the logistics of complying with these rules. Mintz offers the following guidance on this topic:

• To the extent possible, begin in-person review of documents and I-9 completion for new hires who will not regularly report to a company location. Remote I-9 completion and document inspection are still permissible for remote hires until July 31, and can still be utilized until that date if in-person inspection is not practical.
• Identify employees who were hired on or after March 20, 2020 and who have an I-9 that was completed remotely.
• All of these employees will need to have an in-person inspection of their I-9 documents by the company, or by an agent designated by the company, by August 30.
• The I-9 should be annotated in the “Additional Information” box on Page 2 of Form I-9, with the language suggested by USCIS: “Document(s) physically examined on mm/dd/yyyy by [name, title].”
• If the employee has a different document than what was presented at the time of hire (such as a renewed passport or drivers license), note the new information (document title, issuing authority, document number, and expiration date) either next to the prior information in List A, B, or C; or in the Additional Information Section. If your company retains copies of I-9 documentation, retain a copy of the new document.
• For companies that use software or a payroll service to complete I-9s, confirm the ability to annotate existing I-9 forms in the “Additional Information” box on Page 2 of Form I-9.

If you have any questions regarding these changes, please contact your Mintz Immigration attorney.

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