I-9 Physical Presence Requirement Flexibility Extended to July 31, 2023
U.S. Immigration and Customs Enforcement (ICE) announced that it will once again extend Form I-9 flexibilities until July 31, 2023 (Effective November 01, 2022). The Form I-9 flexibility was previously extended through October 31, 2022. This comes as a huge relief to many employers who have been utilizing the I-9 flexibility for new hires and for reverifications.
The current extension will continue to apply to employees hired on or after April 1, 2021 and who work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical in-person inspection requirements associated with Form I-9 until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. Prior to April 1, 2021, the physical presence flexibilities did not apply if there were any amount employees physically present on-site.
What are Employer’s Responsibilities if Utilizing the Form I-9 Flexibility?
Employers who are operating remotely due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must still inspect the Section 2 documents remotely over video link, fax, email, etc. and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. If reverification is required, Section 3 must be completed before the employee’s work authorization expires.
Note that the I-9 flexibilities only allow employers operating remotely the option to postpone the physical presence inspection requirements. This means that after employers resume normal business operations, all employees who were on-boarded or re-verified using the remote verification option, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9.
The following recommendations have been provided by DHS regarding how to notate Form I-9 when remotely inspecting employment authorization and identity documents, and how to perform the required physical inspection once normal business operations resume:
Completing Section 2 when inspecting documents remotely
- Employers should enter “Remote inspection completed on XX/XX/XXXX” in the Section 2 Additional Information box.
Performing physical in-person inspection once normal operations resume
- If the person who performed the remote inspection also performs the physical inspection, the individual should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information box on the Form I-9. Once the documents have been physically inspected, the employer should add in the Section 2 Additional Information box “documents physically examined” with the date of physical inspection along with their initials.
- If the physical inspection is performed by an individual who did not perform the remote inspection, the person who performs the physical inspection should indicate the date they examined the documents as well as their full name and title in the Section 2 Additional Information box. Note that employers in this situation also have the option to complete a new Section 2 of the form I-9 and attach it to the previous form I-9 used for remote inspection.
Notating remote and physical inspection for reverification
- Employers should make required notations for remote and subsequent physical inspections of reverifications in the Additional Information box in Section 2 as described above.
Again, DHS is encouraging employers, at their discretion, to begin the in-person verification of identity and employment eligibility documentation for employees whose documents were inspected pursuant to the I-9 flexibilities. Specifically, employers who have been performing I-9 remote inspections may be burdened by the physical presence inspection requirement once normal business operations resume. It is unknown if DHS will allow for any leniency on the 3-day requirement for physical presence inspection once the flexibility ends.
If an employer opts not to use the I-9 physical presence flexibilities, employers always have the option to designate or contract with someone such as a personnel officer, foreman, agent, or anyone else acting on the company’s behalf, including a notary public, to complete Section 2 or 3 in-person. Remember that anyone else who completes Form I-9 on the company’s behalf must carry out full Form I-9 responsibilities. Further, the company is liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on your behalf. Therefore, if you decide to go this route, it is important to have detailed instructions for both the employee and authorized representative to ensure full I-9 compliance.
By: Krystal Alanis
Krystal Alanis is a Partner at Reddy & Neumann, P.C. with over 10 years of experience practicing U.S. business immigration law. Krystal manages the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment-based green card matters. Krystal guides clients from a variety of industries through the maze of the PERM Labor certification process and has handled thousands of PERM applications throughout her career. Krystal guides employers through the I-140 and Adjustment of Status process, and assists clients with temporary work visas. Further, she oversees the firm’s I-9 compliance team where she advises employers regarding Form I-9 Employment Eligibility Verification requirements and conducts internal audits of a company’s I-9 records, processes, and procedures. Additionally, Krystal represents clients in Form I-9 U.S. Immigration and Customs Enforcement (ICE) inspections (Notice of Inspection). Krystal successfully settled a claim with ICE over Form I-9 substantive paperwork violations that led to an 88% reduction in civil fines for her client.
Reddy & Neumann has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on US. Employment-based immigration. We work with both employers and their employees, helping them navigate the immigration process quickly and cost-effectively