Form I-9 verifies the identity and employment authorization of individuals hired for employment in the United States. Accordingly, all U.S. employers must properly complete Form I-9 for each individual they hire for employment in the United States. Since March 2020, virtual inspections of identity and employment eligibility documents have been permitted where all employees were working remotely due to COVID-19 or when a new employee is working remotely due to COVID-19 after April 1, 2021. On July 31st, virtual inspection of new hire identification documents for Form I-9 is ending.
On May 4, 2023, the US Department of Homeland Security (DHS) and the US Immigration and Customs Enforcement (ICE) announced that employers have until August 30, 2023 to complete physical inspection of identity and employment eligibility documents (including passport, driver’s license, etc.) for any employee whose Employment Eligibility Verification form (Form I-9) was completed virtually according to the temporary flexibilities extended during the COVID-19 pandemic.
Who Can Conduct the In-Person Document Review?
This guidance presumes that the same employer representative who reviewed the documents remotely will also conduct the in-person document review. However, if the employer representative who virtually examined the documents is not the one who performs the physical inspection, the DHS previously advised employers that the representative conducting the physical inspection complete a new Section 2 of the Form I-9 and attach it to the completed remote inspection Form I-9. In these cases, employers will face the increased burden of time required to complete a new Section 2 of Form I-9. Accordingly, it is important to note that this rule is changing as of July 31st and employers have one month to comply. Otherwise, employers could face significant penalties.
Proposed Rule
Although Form I-9 inspection requirements are changing on July 31st, the DHS and ICE recently proposed a permanent rule to allow employers to remotely review Form I-9 identity and employment eligibility documents when hiring, reverifying, and rehiring employees. If finalized, the proposed rule would allow the DHS to create a framework to authorize alternative options for Form I-9 document examination procedures for some or all employers, according to a Notice of Proposed Rulemaking. The proposed rule would formalize the department’s authority to extend flexibilities, provide alternative options, and conduct pilot programs to further evaluate alternative procedures for some or all employers, regardless of whether their employees physically report to work at an employer worksite.
Employers should follow the DHS’ rulemaking process closely and ensure compliance with the new I-9 rules to avoid costly penalties. Depending on the type of offense, penalties for a first offense could reach up to $5,016 and $25,076 for second and subsequent offenses.
If you have questions or concerns regarding In-person I-9 Form Inspections and how it may affect you or your business, please contact the qualified attorneys at Rock Fusco & Connelly, LLC.