HR Legalist

ICE Announces End to Form I-9 Document Inspection Flexibility Policies

In response to the unprecedented impacts of the COVID-19 pandemic on business and government operations, many U.S. government agencies implemented various temporary flexibility policies to facilitate operations. Some have been adopted permanently—such as USCIS accepting scans of original signatures on its forms—and others have expired, or will be expiring. One of those expiring policies concerns the remote inspection of identity and work authorization documents for employees on Form I-9.

Under COVID flexibility policies, U.S. Immigration Customs &  Enforcement (ICE) permitted remote inspection of an employee’s identification and employment authorization documents for completing Form I-9. Specifically, the policies deferred the requirement that employers review such documents in the employee’s physical presence. Instead, employers could examine the employees’ documents remotely (e.g., over video link, fax, or email) and enter “COVID-19” as the reason for the physical examination delay in the Section 2 Additional Information field when physical examination took place in the future. Once the employees’ documents were physically examined, the employer would add “documents physically examined” with the date of examination to Section 2 Additional Information field on the Form I-9, or in Section 3, as appropriate. As is evident, the expectation has always been that such presential document review would occur upon return to normal business operations.

That policy is ending, as per the agency’s May 4, 2023, announcement. Employers will have until August 30, 2023, to perform the usual, physical (in-person) inspection of any documents that have only been reviewed remotely/virtually up until now.

Form I-9 is a very technical area of compliance and, in our experience, many companies are not doing all the steps properly. Please reach out to your Obermayer immigration attorney for guidance on proper Form I-9 completion, recordkeeping and other compliance measures.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.