On May 4, 2023, the United States Immigration and Customs Enforcement (“ICE”) announced that the COVID-19-related accommodations concerning the review of a new hire’s Employment Eligibility Verification Form (“Form I-9”) documentation will be discontinued on July 31, 2023. As such, employers should ensure compliance with the renewed Form I-9 review requirements as soon as practicable for every remote employee hired in the last three years.
Since November 6, 1986, employers must verify and retain certain paperwork, including Form I-9, that demonstrates a new hire’s authorization to work within the United States. This requirement arises under the Immigration Reform and Control Act. Due to the social-distancing caused by COVID-19, in March of 2020, the Department of Homeland Security (“DHS”) and ICE published an announcement that employers were no longer required to review a new hire’s Form I-9 in the new hire’s presence. Remote review was authorized so long as an in-person inspection of the Form I-9 was completed within three (3) business days after an entity’s in-person operations resumed. These accommodations were updated in March 2021, but a final termination date has been set for July 31, 2023.
With the elimination of the Form I-9 accommodations, employers must work to ensure their Form I-9 paperwork for remote new hires is in compliance with the former Form I-9 review requirements within thirty (30) days of the effective date. As such, by August 30, 2023, employers must complete an in-person, physical inspection of Form I-9 documents for employees whose documents were inspected remotely and must notate in the “Additional Information” field in Section 2 of the Form I-9 that the new hire had a remote and subsequent physical inspection for reverification. ICE and DHS issued Form I-9 Examples Related to Temporary COVID-19 Policies as an aid to employers working on compliance during the 30-day grace period.
It is also a possibility that DHS may issue new rules relating to last year’s publication of a “Notice of Proposed Rulemaking” for alternative procedures allowing remote document examination for Form I-9 documentation. Employers should keep a lookout for this final rule as it could influence the way employers are expected to complete and retain records relating to a new hire’s Form I-9 moving forward.
If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Katherine T. McCarley at (585) 258-2820 or kmccarley@underbergkessler.com.