Updated Extension of I-9 Flexibilities Through August 2023

Beginning in March of 2020, many of the practices regarding hiring employees were modified, and in October 2022 the Department of Homeland Security announced an extension of I-9 flexibilities through July 2023. While many of the modifications have been helpful during a time in which thousands if not millions of employees have worked remotely, it has presented some challenges to employers in keeping up with the most current practices for I-9 compliance.

Update on Extension of I-9 Flexibilities Through August 2023

In March of 2020, the Department of Homeland Security began announcing temporary flexibilities regarding the Form I-9. In the time since, some of these flexibilities have been continued.

Since April 2021, some of the I-9 flexibilities that remain in place include:

• Employees who report in person to work at a business on a regular, predictable, or consistent basis are expected to have their identity and eligibility documentation inspected in-person by their employer.
• Employees hired to work in a remote setting only due to COVID-19 precautions are on a temporary basis allowed to exempt from physical and in-person Employment Eligibility Verification inspections. However, once the employee begins in-person employment, this flexibility is terminated for them.
• Employers that cannot inspect identification and eligibility documents in person should note the reason they are unable to do so in a dedicated memorandum and retain it with the employee’s Form I-9. In the event of an audit by a federal agency, violations of this flexibility will be evaluated on a case-by-case basis.

These flexibilities were considered temporary and would have expired on October 31, 2022. However, on October 11, 2022, the Department of Homeland Security announced the extension of I-9 flexibilities through July 2023.

What The Extension Means for Employers

For the most part, the I-9 flexibilities will continue to be handled much the same until they are set to expire on July 31, 2022.

Employees working remotely that were hired on or after April 1, 2021 are temporarily excused from the regular physical inspection of documents until they begin working in-person on a consistent basis, or the flexibilities extension is terminated. However, a critical aspect of this point is that once in-person operations resume at a physical office location (meaning that any or all of the related employees are notified that they are required to return to in person work at the office site) the utilization of remote I-9 verification must cease entirely for that location and all employees who had previously utilized the virtual verification process must report to their employer’s office within three business days for an in-person verification of the identity and employment verification documents. These documents must be physically inspected and the form I-9 additional information in Section 2 of the I-9 form should be updated with a note “documents physically examined” and the date of the inspection inserted as well.

It is essential for employers to note that they are still required to complete the remote inspection of identity and employment authorization documents by the end of three days since the employee’s hiring. However, as referenced above, in Section two of the Form I-9 the employer is required to note COVID-19 as the reason a physical inspection was not performed.

Finally, the Form I-9 flexibilities do not preclude employers from commencing an in-person verification of the employee’s identity and employment eligibility documentation for those who were hired on or after March 20, 2020, and who originally presented their documents virtually.

It is very important that the Human resources or operations team organize meetings with impacted employees to ensure the required steps to bring closure to the flexibilities and to stay in compliance with the I-9 rules.

Steps an Employer Can Take to Protect Their Compliance

While employers may feel like the expiration and extension of deadlines of expiring documents can be hard to grapple with, there are steps they can take to better protect their compliance.

To keep a compliance issue from becoming a runaway problem, it is vital for employers to run periodic internal audits to catch compliance issues before an official audit takes place. This could be beneficial in an audit as it shows proactivity in striving for compliance.

Employers should make a point to regularly check the Department of Homeland Security guidelines to ensure the most current practices are being used. This takes intention and may even need to be scheduled on the office calendar.

To help lighten the workload of keeping up with Form I-9 modifications, many employers find it useful to enlist the help of a company who offers digital I-9 software that is automatically updated with changes.

Employers should make a note of the extension of I-9 flexibilities through July 2023 and continue to stay aware of any changes that may affect their I-9 compliance in the future.