To the extent that they have not yet done so, employers should begin physically reinspecting Section 2 documents for employees who report into the office on a regular basis as soon as possible. 

On May 4, 2023, U.S. Immigration and Customs Enforcement (ICE) announced that employers have an additional 30 days to bring their I-9s into full compliance after the July 31 sunset of the COVID-19 flexibilities policy. The end of the remote flexibilities policy also means that for any employee hired on or after August 1, 2023, employers must complete a physical inspection of the documents presented for the I-9 process, even if the company is 100 percent remote.

Since March 2020, employers have been temporarily exempt from the physical inspection requirement of remote employees’ documents required for the I-9 process. The policy required that employers undertake a physical inspection of the affected employees’ I-9 documents when those employees return to in-person work on a “regular, consistent, or predictable” basis or when ICE terminates the remote inspection policy, whichever is sooner. (Note: Employers who availed themselves of the remote option were instructed to provide written documentation of their remote onboarding and telework policy for each employee. Per the government, this burden rests solely with employers.)

For employers who have already initiated a return to office on a regular basis, even for part of their workforce, the remote flexibilities granted by ICE’s policy no longer apply and employees onboarded remotely since April 1, 2021, need to have their Section 2 documents physically reinspected by an authorized representative. For the past two years, many employers may have operated under the mistaken assumption that they could remotely inspect documents presented by all new employees remotely, regardless of whether they had some employees reporting into an office on a regular basis.

To the extent that they have not yet done so, employers should begin physically reinspecting Section 2 documents for employees who report into the office on a regular basis as soon as possible. These verifications must be completed no later than August 30, 2023, based on ICE’s announcement. Employers should also seek counsel on reverifying documents for the part of the workforce hired since April 1, 2021, if physical document reviews were not completed (see discussion below).

Next Steps for Employers

Employers should take the following actions to ensure I-9 compliance by the August 30 deadline:

Identify Noncompliant I-9s and Conduct Any Outstanding Physical Inspections Before August 30, 2023

Update Form I-9 for each affected employee by annotating the “Additional Information” box located in Section 2 of the form, as follows:

• Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to Section 3 as appropriate. The notation should indicate both when remote inspection was completed and when the employee’s documents were physically inspected, as well as include the initials of the authorized representative who completed the physical document inspection.
• USCIS has recently issued updated FAQs providing examples of how to annotate the additional information field on the I-9 form. Don’t forget to include any I-9s where reverifications occurred during the remote flexibilities policy. These should also be annotated in the additional information field.

Prepare an I-9 Memo for Any Uninspected Employee Documents

Employers should create a memo to the I-9 file for any employees whose documents could not be physically inspected by the August 30 deadline (such as when the employee’s employment ended prior to the physical inspection of the I-9 documents), or for whom the I-9 was not properly completed during remote inspection.

The memorandum may be brief, but should detail the employee’s remote work status at the time of hire, when and how the employer remotely verified their identity and employment eligibility documents, when the employee’s documents are being physically inspected, any changes in the documents or status, or in the alternative, why they could not be reinspected.

Resume Physical Inspection of I-9 Documents as Soon as Possible, but No Later Than August 1, 2023

Starting August 1, 2023, employers are required to inspect physical documents for all employees regardless of their remote or hybrid work status. For fully remote employees, employers may take one of several approaches to complete physical verification. ICE has confirmed that anyone the employer designates may be an “authorized representative” for completing Section 2 and the physical document inspection. This could include:

• A member of the employee’s household
• A designated agent (like a notary); or
• A third-party agency hired by the employer

The employer will remain liable for errors or omissions on the form, regardless of who completes it. Employers who use this verification method should prepare instructions for their designees and be available to answer questions from the agent during the verification process. Employers should also review the completed I-9 as soon as possible so any errors can be corrected before the employee’s fourth day of employment, thereby reducing any potential liability.

As a reminder, Section 1 of the I-9 must be completed and signed by the employee no later than the first day of employment. The list of acceptable documents should be provided to the employee at that time so the employee can select either one List A document that establishes both identity and employment eligibility, or a combination of a List B (identity) and List C (employment eligibility) document.

Section 2 must be completed by the employer, or a designated representative, within three days of the employee’s first day of work. Section 2 requires employers to physically inspect the employee’s original identity and employment eligibility documents.

Special Situations Requiring Careful Attention

Employers should also be prepared to address the following situations when completing the physical reinspection of I-9 documents.

Driver’s License or U.S. Passport Was Valid When Verified Remotely but Has Since Expired

In this situation, USCIS has advised that so long as the employee’s document was “unexpired at the time of remote inspection, the employer should not request a new document and can proceed with the physical inspection” of the expired document, when it is available. (Emphasis added.)

USCIS Immigration Status Documents Were Valid When Verified Remotely but Have Since Expired

In this situation, employers should physically inspect the expired documents, if available, and annotate the I-9 as described above―but they must also conduct a reverification of the employee’s USCIS documents and complete Section 3 of the I-9. If Section 3 reverification was already completed for the employee remotely, then employers should note “COVID-19” in the additional information field or in the margin with the date that the document(s) were physically inspected.

Employee’s Immigration Status Has Changed Since Remote Verification

In this situation, employers should physically inspect the prior status documents, if available, and annotate the I-9 as described above, but they must also conduct a reverification of the employee’s USCIS documents. Employers may complete a new Section 2 of the form and attach it to the current I-9 or annotate the new document details in the additional information field and note the date that physical inspection was completed.

Documents Used for Remote Inspection Are Not Available for Physical Inspection

In this situation, USCIS has advised that employers can either:

• Complete Section 2 on a new Form I-9 and attach it to the Form I-9 used for remote inspection (which the agency recommends); or
• Provide the document title, document number, issuing authority, and expiration date (if any) of the new document in the additional information field on the employee’s existing Form I-9 and annotate that the employee presented the new document(s) during physical inspection.

I-9 Was Not Properly Completed During Remote Inspection

Employers who did not properly annotate an employee’s I-9 form during remote verification will want to take corrective action to show good faith compliance with the I-9 verification procedures. In this situation, an employer could either:

• Notate the additional information field with “Remote Inspection,” the date that remote verification occurred, initial and date the correction as of the date it was added, as well as indicate the date of physical reinspection; or
• Redo Section 2 on a new Form I-9 form and attach it to the old Form I-9.

In either case, the employer will want to attach a written memorandum to the employee’s I-9 describing when and why the corrections were made.

Be Consistent to Avoid Allegations of Document Abuse or Discrimination

Employers should implement standard procedures for carrying out the reverification process for impacted employees. This should include consistent processes for identifying the affected population, contacting employees and completing the physical inspection process.

Implementing standard procedures will ensure consistent reverification processes are being carried out for the employer’s entire workforce. Consistency will reduce the likelihood of audits and investigations for discriminatory I-9 practices from the Department of Justice Office of Immigrant and Employee Rights.

Looking Ahead: The Future of Remote Verification

Despite ICE’s announcement, this will likely not be the end of I-9 remote verification. Last year, ICE issued a notice of proposed rulemaking to explore potential modifications to the I-9 verification process, including allowing ICE to authorize alternative options for completing the document inspection process. The proposed changes include:

• Creating alternative documentation inspection and verification procedures for some or all employers;
• Initiating pilot programs to test changes to the I-9 verification process;
• Making changes to the I-9 form, including a box that an employer would select indicating which type of procedure it used to complete the document inspection process;
• Revising the Form I-9 document retention to require employers to retain copies of all employee documents presented remotely;
• Imposing mandatory anti-discrimination and fraud document detection training for authorized representatives who are responsible for completing I-9s.

According to ICE’s recent announcement, “DHS is currently reviewing public comments and plans to issue a final rule later this year.” This means that there is a reasonable prospect of some form of remote verification becoming a reality in the near future. Whether that is a voluntary opt-in procedure (similar to the largely voluntary E-Verify system) or a permanent alternative procedure with a corresponding change to Form I-9 itself remains to be seen. In either case, employers who elect to remotely verify an employee’s documents using the alternative procedure should expect additional requirements.

For More Information

If you have any questions about this Alert, please contact Lisa Spiegel, Valentine A. Brown, Kristopher Peters, any of the attorneys in our Immigration Law Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.