Employers Must Conduct Verification Of I-9 Documents In The Employees' Physical Presence No Later Than August 30, 2023

By: Min Kim and Carmen C. Lopez 

Introduction 

According to a U.S. Department of Homeland Security (DHS) and Immigration and U.S. Customs Enforcement (ICE), the current COVID-19 flexibilities are set to expire on July 31, 2023. This latest guidance clarifies that employers must complete the physical in-person examination of both identity and employment eligibility documents that might otherwise have been remotely and virtually inspected, no later than August 30, 2023.  

Updates 

Since March 20, 2020, ICE has been permitting remote verification of Form I-9 documents for certain employees who were working remotely due to COVID-19. However, this flexibility was always intended by ICE to simply serve as a placeholder for the eventual need of employers to physically inspect these affected employees’ identity and employment authorization documents in-person when the temporary measures expired.  

Specifically,  for those employees who had their Form I-9s verified remotely during the pandemic and have now since begun non-remote employment on a regular, consistent, or predictable basis, such Form I-9s were now required to be updated by the employer to expressly denote that an in-person inspection of I-9 identity and employment authorization documents was completed  within 3 business days of the employee resuming non-remote employment.  

For all other employees, including those who are still working entirely remote as well as employers who have completely shuttered their physical locations and have adopted a pure remote-work business model, the need to physically and in-person inspect Form I-9 documents still applies. This ICE announcement gives such parties until August 30, 2023 to comply with the in-person inspection requirement.  

Failure to comply with this requirement may result in civil and criminal penalties and monetary fines that range from $200 to over $10,000 per Form I-9, depending on the severity of each Form I-9 violation. 

In updating all Form I-9s completed for such affected employees starting from March 20, 2020 to the present, employers should be aware that U.S. Citizenship and Immigration Services (USCIS) has provided best practice examples on how to notate remote inspections and complete the subsequent physical inspection on Form I-9 below:  

• Figure 1 – Complete Section 2 when inspecting documents remotely. 
• Figure 2 – Performing physical inspection. 
• Figure 3 – Performing physical inspection by a different person once normal operation resume.  
• Figure 4 – Notating remote and physical inspection for reverification.  

Conclusion 

Employers should be advised that the August 30, 2023 deadline is a hard, non-negotiable deadline implemented by DHS. Employers who have not timely physically and in-person inspected the identity and employment authorization documents for all affected employees hired during the pandemic and subsequently updated Form I-9s will be assuming tremendous risk of being found to be non-compliant by ICE and thus liability may ensure. For any questions or assistance regarding the latest updates on in-person Form I-9 verification after COVID-19 flexibilities expire, please contact your trusted Chugh, LLP immigration professionals.