United States: DHS Partially Ends Form I-9 Remote Work Flexibility

The Department of Homeland Security (DHS) announced an end to its COVID-19 temporary flexibility for Form I-9, Employment Eligibility Verification. The temporary policies, announced on March 19, 2020 and covered in our March 24, 2020 news alert, were designed to allow U.S. employers flexibility for onboarding new employees while following public health guidelines for social distancing. This flexibility will end on July 31, 2023.

The March 2020 announcement noted that employers would eventually need to perform in-person physical document inspections for employees whose documents were inspected remotely. This latest announcement confirms in-person inspection must be completed by August 30, 2023.

Employers retain the option to designate an “authorized representative” to physically inspect the Section 2 documents for I-9 verification. The authorized representative does not need to be employed by the U.S. employer. An authorized representative can be anyone designated by the employer to act on the employer’s behalf for the purpose of physically inspecting the new employee’s documents and completing the I-9. This can even be a family member or friend of the new employee. This third-party document review must still be conducted in person.

Employers who designate a third-party representative should note: If an authorized representative makes a mistake when completing the Form I-9, that mistake will be attributed to the employer. Therefore, the employer should provide detailed instructions for requesting I-9 documents, physically inspecting them, making copies (if this is the employer’s normal practice), and completing the I-9 form correctly. Small mistakes can be costly in the event of an I-9 audit, so the better the instructions provided to the authorized representative, the better for the employer. Still, this approach has significant benefits for employers with remote employees who may no longer avoid presenting documents in person.

Last year, DHS proposed a rule that allows for permanent alternative procedures for remote document review in connection with the Form I-9. DHS anticipates publishing a Final Rule in the Federal Register that will implement this proposal.

If you would like more information, please contact Dustin O’Quinn. Keep up-to-date by subscribing to Lane Powell’s Legal Updates.