In the face of the COVID-19 pandemic, in March 2020, the Department of Homeland Security (DHS)/US Immigration and Customs Enforcement (ICE) temporarily suspended the physical presence requirement of the Form I-9 verification process for certain employers. These flexibilities apply to employees until they undertake non-remote employment on “a regular, consistent, or predictable basis,” or until the extension of the flexibilities is terminated, whichever is earlier. DHS issued a series of extensions of the Form I-9 flexibilities over the past three years.
On May 5, 2023, ICE announced that the temporary flexibilities will end on July 31, 2023, and issued updated guidance in the form of questions and answers (the Q&As). By August 30, 2023, that is 30 days after the July 31 end date, employers are required to physically examine documents for employees hired on or after March 20, 2020, whose I-9 documents were inspected remotely. If an employee separates from employment before this physical inspection can be completed, employers are directed to note this in the “Additional Information” box on the Form I-9, along with the employee’s separation date. The Q&As remind employers that they cannot retain employees who the employer knows are not authorized to work in the United States or who do not fulfill the Form I-9 documentation requirements, including presenting documentation for in-person physical examination.
DHS notes in the...
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