This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.
Employers will have an additional 30 days to comply with Form I-9 requirements after COVID-19 flexibilities sunset on July 31, 2023, according to the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE). These flexibilities were first announced in March 2020 due to the COVID-19 pandemic and subsequently extended several times. DHS encourages employers who have been using these temporary flexibilities "to plan ahead to ensure that all required physical inspection of identity and employment eligibility documents is completed" by August 30, 2023.
The flexibilities deferred the requirement that employers review employees' identities and employment authorization documents in the employees' physical presence, instead allowing that to occur remotely, with the expectation that physical inspection would occur within three business days after normal operations resumed. ICE said employers could continue to implement the flexibilities "until affected employees undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier."
Under the flexibilities, employers could examine the employees' documents remotely (e.g., over video link, fax or email) and enter "COVID-19" as the reason for the physical examination delay in the Section 2 Additional Information field on the Form I-9 when physical examination took place in the future. Once the employees' documents were physically examined, the employer would add "documents physically examined" with the date of examination to the Section 2 Additional Information field on the Form I-9, or in Section 3, as appropriate.
