The Department of Homeland Security (DHS) has announced the end of its temporary relaxation of the standards for physically inspecting a new worker’s employment eligibility documents when completing the Form I-9. The relaxed standard officially expires on July 31, 2023, but DHS is allowing a 30-day grace period to come into compliance. This means employers have until August 30, 2023, to physically inspect all documents previously only reviewed virtually or remotely. As we originally reported, DHS had relaxed the requirement for employers operating remotely and unable to physically inspect documents for individuals hired on or after March 20, 2020, during the COVID-19 (coronavirus) national emergency. Later, as we previously reported, the relaxed standard allowed two exceptions to in-person inspection: one for individuals working exclusively remotely due to COVID-19 precautions who were hired on or after April 1, 2021, and another for entire workplace establishments working remotely.
Tips: After more than a dozen extensions of this temporary authorization for remote inspection of I-9 documents, DHS’s use of the new term “grace period” indicates that this really is the end of the temporary policy. However, the agency’s announcement says DHS is reviewing comments from an August 18, 2022, proposed rule that would allow alternative procedures for examining I-9 documents, and intends to issue a final rule later this year. Vigilant will keep members informed of any developments.
The company representative who conducted the initial remote review of the documents should already have written “COVID-19” in the Form I-9 Section 2 “Additional Information” field or at the side of Section 3 (reverification), as appropriate. If the same person is now physically inspecting the documents, they should add “documents physically examined on [date] by [initials].” If a different person is performing the in-person inspection, they should complete a new Section 2 or Section 3 (as appropriate) and attach it to the employee’s original I-9.
In those cases where a document reviewed remotely has been lost or isn’t available for in-person inspection, the employee will need to complete a new Section 1 of Form I-9 and show a qualifying document from List A, or a combination of documents from Lists B and C. Keep the same hire date and attach the newly completed Form I-9 to the original. Also, indicate in the Section 2 “Additional Information” field that the employee’s original documents were unavailable. If any of the documents reviewed remotely have since expired, they remain acceptable for in-person review as long as the document was valid at the time the original Form I-9 was completed.
DHS continues to say that employers who were unable to physically inspect Form I-9 supporting documents before separation of employment for employees who were hired since March 20, 2020, should memorialize any reason for the inability to inspect the documents in person and attach the explanation to the Form I-9. DHS will evaluate the explanation on a case-by-case basis in the event of a Form I-9 audit.
