The U.S. Department of Homeland Security (DHS) has announced that the COVID-19 temporary flexibilities for Form I-9, Employment Eligibility Verification will end on July 31, 2023, returning to the standard in-person physical document inspections. U.S. Immigration and Customs Enforcement (ICE) has announced that employers must complete these in-person inspections for all employees whose documents were inspected remotely during the period of temporary flexibilities by August 30, 2023.
In response to the COVID-19 pandemic, DHS introduced temporary flexibilities in March 2020, which were later updated in March 2021. These relaxed rules allowed employers to inspect employees' identity and employment authorization documents remotely, a move designed to accommodate the new reality of remote work and social distancing regulations. The flexibility provided a much-needed solution for employers and employees alike in an unprecedented situation, providing a way to maintain compliance with employment eligibility verification requirements without risking health and safety.
Implications for Employers
This shift back to in-person inspections doesn't come as a surprise, but it does require preparation and action from employers. The good news is that the announcement provides employers with additional time to complete the necessary in-person physical inspections and annotate Form I-9 accordingly.
- Meet In-Person Deadline - Employers must effectively complete in-person inspections for all relevant employees by the August 30 deadline. This may involve coordinating with remote employees to facilitate the inspection of their documents in a timely manner.
- Identifying Virtually Reviewed I-9 Forms - Identify and isolate all Forms I-9 that underwent virtual review during the period of COVID-19-related flexibility. These forms may be segregated in a dedicated location for easier access and management. However, employers should note that Forms I-9 completed through in-person review by an authorized representative during remote operations should not be included in this collection for repeat review.
- Consider Return to Work for Some Employees - The end of the temporary flexibilities could mean a return to office-based work for some employees, as the ability to inspect documents remotely was a significant facilitator of remote work for certain roles. Employers will need to balance their operational needs with the preferences and expectations of their employees in this regard.
- Design an In-Person Review Process - Design a viable and efficient process for conducting in-person reviews of these Forms I-9. Employers should communicate clearly with their employees about the need to complete these reviews and ensure that the process is implemented equitably across all affected employees. Employers are not required to wait until the end of the Form I-9 flexibility provisions or their return to normal operations to begin the in-person review and should start this process as soon as possible, even if some operations remain remote.
- Maintaining Compliance - With the anticipated return to normal operations, DHS and ICE will also resume their compliance enforcement activities. This includes conducting Form I-9 audits and issuing Notices of Inspection. Therefore, employers should ensure their Forms I-9 are ready for inspection and that their onboarding processes remain compliant with the updated requirements.
The Road Ahead
Despite the return to in-person inspections, it's worth noting that DHS has indicated an interest in allowing some form of remote document examination in the future. The department published a Notice of Proposed Rulemaking for alternative procedures for remote document examination for Form I-9 last year and anticipates publishing a Final Rule that will implement this proposal in the Federal Register. While it's unclear exactly what this proposal will entail, it suggests that DHS recognizes the value and convenience of remote document inspections.
How Can DISA Help?
The end of the temporary flexibilities for Form I-9 represents a significant shift in employment eligibility verification procedures. Employers should be proactive in adjusting to this change, ensuring they can effectively complete in-person inspections and thoroughly annotate the Form I-9 for all relevant employees.
While the return to in-person inspections may present logistical challenges, it's also an opportunity to review and improve employment eligibility verification processes. With the potential for further changes on the horizon, DISA Global Solutions can help you conduct Form I-9 and E-Verify services.
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- Understanding Federal Laws for Background Checks in Healthcare: A Guide for Employers and HR Professionals
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About DISA Global Solutions
Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background screening, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.