Form I-9 requirement flexibility ending July 31, 2023

In the United States, Form I-9 plays an essential role in verifying the identity and employment authorization of individuals hired for employment. However, due to the challenges posed by the COVID-19 pandemic, temporary flexibility measures were implemented to accommodate remote work and social distancing requirements.  

As we move toward a post-pandemic world, U.S. Immigration and Customs Enforcement (ICE) has announced that these flexibility provisions will expire on July 31, 2023, and businesses will have 30 days after that to complete in-person physical document inspections for workers whose documents were inspected remotely during the temporary flexibilities period.  

The press release issued by ICE and the U.S. Department of Homeland Security (DHS) states, “Employers will have 30 days to reach compliance with Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023… DHS encourages employers who have been using those temporary flexibilities to plan ahead to ensure that all required physical inspection of identity and employment eligibility documents is completed by Aug. 30, 2023.”  

According to the update, effective July 31, 2023, all businesses will need to conduct in-person inspections of identity and employment documents for new recruits, even if they do not report to a physical location. Employers who have been using temporary flexibility measures to complete Form I-9s remotely must also carry out the required physical inspection of identity and employment eligibility documents by August 30, 2023. This applies to workers recruited on or after March 20, 2020, in addition to those who have received a remote or virtual inspection under the flexibilities policy. 

How your small business can notate remote inspections and subsequent physical inspections

U.S. Citizenship and Immigration Services (USCIS) has provided guidelines on how to annotate a previously completed Form I-9 to identify a subsequent physical inspection of identity and employment eligibility documents.  

Some of the guidelines issued are:  

• If the person who performed the remote inspection also performs the physical inspection, they should indicate the date they physically examined the documents then add their initials in the Additional Information field. 

• If the person who performed the remote inspection cannot also perform the physical inspection, the person who performs the physical inspection should indicate the date they physically examined the documents as well as their full name and title in the Additional Information field. 

• Employers should make required notations for remote and subsequent physical inspections of reverifications in the Additional Information field in Section 2. If the same person performs both the remote and subsequent physical inspections for a reverification, complete as shown. If a different person performs the physical inspection, that person should write their full name and title, instead of their initials.  

Failure to comply will have consequences 

All business owners have certain obligations under the immigration law when hiring staff members for their companies, and not acting in accordance with the law can invite strict penalties. For instance, failing to comply with Form I-9 employment verification requirements is considered a civil violation, which can lead to heavy civil fines, according to the USCIS. 

In order to ensure businesses are not in any violation, officials from the DHS, the Immigrant and Employee Rights Section (IER) at the Department of Justice and the Department of Labor have the right to inspect an employer’s Form I-9, after sending the employer a written Notice of Inspection at least three days before the date of inspection.

Conclusion 

Businesses must prepare to return to standard compliance procedures when the temporary flexibility measures related to Form I-9 requirements end on July 31, 2023. Understanding the obligations and ensuring proper completion and retention of Form I-9 are essential to avoid potential penalties and legal issues. 

Employers can ensure compliance while upholding the integrity of the employment authorization process by staying informed and following best practices during the transition.  

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This material has been prepared for informational purposes only. Escalon and its affiliates are not providing tax, legal or accounting advice in this article. If you would like to engage with Escalon, please contact us here.