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By Moira Phan, Legal Intern and Rachel H. Khedouri, Esq

In response to the COVID-19 pandemic, when many businesses began onboarding employees for remote work, the U.S. Department of Homeland Security (“DHS”) and U.S. Immigration and Customs Enforcement (“ICE”) suspended the physical presence requirement for examining identity and employment eligibility documentation on the mandatory U.S. Citizenship and Immigration Services (“USCIS”) Form I-9. Instead, employers could remotely or virtually examine documents, delaying in-person physical examination until normal operations resumed. These temporary “COVID-19 flexibilities” were originally announced in March 2020 and later updated effective April 1, 2021.

In October 2022, DHS/ICE announced that these temporary flexibilities will end on July 31, 2023. Initially, DHS/ICE took the position that employers would have to physically inspect employees’ documents within three business days of resuming normal operations. But, in an announcement last month, DHS/ICE extended that period to thirty days. Accordingly, for employees hired on or after March 20, 2020, who have not returned to regular non-remote employment and whose identity and employment eligibility documents have yet to be examined in person, employers (or their authorized representatives) will have until August 30, 2023, to physically examine these documents and notate this inspection on the employees’ Forms I-9.

Notably, the Form I-9 physical examination requirement also applies to fully remote businesses and workers. Employers who moved to remote work during the pandemic and do not plan to return to an in-office presence still must physically examine their employees’ documents by the August 30 deadline. Likewise, in-person employers with fully remote employees must comply with the physical presence requirement even if those workers are located far from the office. As noted, employers have the option to select an authorized representative to fill out the employer parts of the Form I-9 and complete the in-person document inspection.

Employers who deferred physical examination under the “COVID-19 flexibilities” should have indicated the date of remote inspection in the Section 2 box marked “Additional Information.” Upon physically examining the documents, employers or their authorized representatives should enter the following information below the previously notated remote inspection date:

  • “COVID-19” as the reason for the delayed physical examination;
  • “Document physically examined on” with the date of physical examination; and
  • Identification of the examiner by initials (if the remote and physical examinations were conducted by the same individual) or full name and title (if the physical examination is being conducted by a different individual).

Employers should complete Section 3 of the Form I-9 if the employment authorization or documentation of employment authorization has expired since being examined remotely, if the employee has had a legal name change in the interim, or if the employee was terminated and is being rehired within three years of the date the Form I-9 was originally completed.

USCIS has provided examples of how to properly notate remote and physical examinations on Forms I-9 HERE.

STAY TUNED: DHS has proposed new rules that would allow employers to examine Form I-9 documentation using alternative procedures, such as remote inspection, and has announced plans to issue a final rule later this year. We will continue to monitor for updates.

If you have any questions on how to meet your Form I-9 obligations, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.


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