All U.S. employers are required to complete Form I-9 for employees hired to work in the United States. This form serves to verify an employee’s identity and ability to work in the country.
Within 72 hours of hire, employees must present their employer with acceptable identity and employment authorization documents, and the employer must physically inspect the documents to determine whether they’re genuine and belong to the employees.
March 2020 Flexibility
At the onset of the pandemic, U.S. Immigration and Customs Enforcement (ICE) eased employers’ requirement to conduct in-person inspections of identity and work authorization documents, allowing them to review the documents remotely (via email, video, fax, etc.) while taking COVID-19 precautions.
ICE indicated that once normal operations resumed or the flexibilities ended, however, employees who were onboarded using remote verification were to report to their employer within three business days for in-person verification.
April 2021 Flexibility Modified
Form I-9 COVID flexibilities were amended to state that employees hired after April 1, 2021, must present documents for physical inspection if “they physically report to work at a company location on any regular, consistent, or predictable basis.”
Consider this example: You hired new employees in September 2020. They worked fully remotely from their start date until May 2021, at which time they began reporting to your physical office every Tuesday and Thursday.
To have complied with the April 2021 guidance, you should have instructed the employees to present their physical I-9 documents within 72 hours of their return to work because they were working in the office on a regular, consistent, or predictable basis.
July 31, 2023, Flexibility Ends
ICE confirmed the Form I-9 COVID flexibilities will end on July 31, 2023, but it’s granting employers 30 days to ensure compliance with the requirements.
By August 30, 2023, employers must physically inspect I-9 documents for all employees hired on or after March 20, 2020.
Authorized Representative Inspection
Physical inspection of Form I-9 documents may be conducted by an agent of the employer. The agent may be any person, although we recommend the person be at least 18. The employer is responsible for errors made by the agent, so communication with the agent and careful review of the I-9 are necessary to ensure compliance.
If an agent is doing a physical inspection after the employer’s virtual inspection, the agent must follow the protocols described below to update the I-9.
How to annotate Form I-9
ICE has made clear that the forms for workers who were verified remotely should include specific annotations. It was recommended that the “Additional Information” field in section 2 include the date by which remote verification was completed.
Once the physical document inspection is performed, the following annotation should be added:
- COVID-19 and
- Documents physically examined on [date] by [initials].
If the employee performing the physical inspection is different from the person who inspected remotely, they should add their full name and job title instead of initials only.
The U.S. Citizenship and Immigration Services (USCIS) provides additional form examples related to the temporary COVID policies here.
Practical Considerations
Fortunately, ICE issued its guidance in early May, allowing employers to prepare well in advance of the August compliance deadline.
Begin planning for and implementing the physical inspection process now. Develop a list of employees hired since March 20, 2020, who require physical document inspection. Employers complying with previous I-9 guidance should have already physically inspected documents for employees who have returned to in-person work under normal conditions or those physically reporting to work on any regular, consistent, or predictable basis. If you haven’t already verified documents for those employees, prioritize their inspection.
Also, clearly and repeatedly communicate deadlines with those employees who must present physical documents.
If you’re the contact responsible for physically inspecting I-9 documents and annotating the form, consider putting time on your calendar each week to plan, communicate, and execute your strategies to remain compliant.
Lastly, if you have questions or concerns about the compliance of your Form I-9s, contact your Dentons immigration attorney for advice on your specific situation.
Kailey Blazek Naranjo is an attorney with Dentons Davis Brown in Des Moines. You can reach her at kailey.blazek@dentons.com.
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