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DHS Ends Form I-9 Flexibility; Provides More Time For Employers To Comply

Maggio Kattar

The Form I-9 Employment Eligibility Verification rules require that documents presented by the employee to establish identity and work authorization be reviewed in the employee’s physical presence and that the person reviewing the documents must be the same person who certifies that the documents appear valid and relate to the employee.

During the COVID-19 National Emergency declared in March 2020, DHS announced temporary flexibilities that included deferral of the physical presence requirement for document inspection, in qualifying circumstances, until the end of the National Emergency. During this period, employers were permitted to review documents virtually. Employers were instructed to annotate the Form I-9 to identify Forms where documents were inspected remotely.

The physical inspection requirement was simply deferred, not eliminated, and employers were initially instructed that they would have 30 days from the end of the National Emergency to complete the in-person physical inspection of documents for those Forms initially inspected remotely. Instructions for certification of the documents will depend upon whether it is possible for the same person who inspected the documents remotely is available to perform the in-person inspection.

The White House announced the end to the National Emergency effective May 11, 2023, however DHS is providing employers extra time to adjust their practices and complete the in-person inspection of documents.

DHS has announced that the deferral of in-person inspection will end July 31, 2023 and employers will have until August 30, 2023 to complete the in-person inspection of documents initially reviewed remotely.

DHS has published a Notice of Proposed Rulemaking which may provide alternative document review procedures in the future, however, until the Final Rule is published in the Federal Register, documents must still be reviewed in the employee’s physical presence.

Please contact immigration counsel if your company requires assistance with the transition to in-person verification of I-9 documentation.