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The temporary flexibilities allowed by the U.S. Department of Homeland Security (DHS) with respect to the physical presence requirements of Form I-9 documentation will end as of July 31, 2023. Employers must complete in-person physical document inspections for Form I-9 purposes by August 30, 2023, for all employees hired on or after March 20, 2020, whose documents have only been virtually or remotely examined.

To address this requirement, employers should complete an analysis of which Form I-9s will need to be updated with an in-person inspection of documents. Employees whose Form I-9 needs to be updated should be notified and scheduled to present their identity and employment authorization documents for an in-person review.

Employers may make arrangements with any person they choose (other than the employee themself) to act as the employer’s “authorized representative” in completing the physical review of employees’ documents for Form I-9 purposes. The authorized representation may even be a friend or family member of the employee, although when using an authorized representative, employers should supervise the process closely as the employer remains liable for any violations in connection with the Form I-9 or verification process committed by their authorized representative.

Upon completion of the physical inspection of documents for purposes of updating a previously completed Form I-9, there should be notations in the “Additional information” box in Section 2 of the Form I-9 as follows (a) “Remote inspection completed on [DATE]” (which date would likely match the date next to the signature of the employer or authorized representative in Section 2 or 3), and (b) “COVID-19; Documents physically examined on [DATE] by [INITIALS/NAME & TITLE].” If the individual who conducts the in-person examination of documents is not the same person who had conducted the remote examination of documents, that individual’s full name and title should be included, whereas if it is the same person only their initials need be noted upon completion of the physical inspection.

Staffing firms often complete Form I-9s with respect to candidates who have been screened and accepted an offer to be in their pool of those eligible for assignments in order to avoid delay when an appropriate temporary assignment arises. The priority for these staffing firm employers should be in completing the physical inspection of documents for any of their temporary employees actively on an assignment. For those individuals who are eligible for, but not currently on an assignment, and for whom the staffing firm has a remotely completed Form I-9 on file, before the deadline the staffing firm should either physically inspect the individual’s Form I-9 documents and update their Form I-9 accordingly or should make a notation on their Form I-9 that as of August 30, 2023, they were not actively working. Staffing firms should also institute measures to ensure individuals are not permitted to work on a temporary assignment after August 30, 2023, unless their Form I-9 reflects a physical inspection of their identity and work authorization documents.

Employees may present the same documents for physical inspection as they used for remote inspection, even if such documents are now expired – as long as they were not expired at the time of the remote inspection. However, employees are not required to present the same documents for physical inspection as they presented for remote inspection. If different documents are presented at the time of physical inspection, DHS recommends completing Section 2 on a new Form I-9 and attaching that to the Form I-9 used for remote inspection.

Employers are prohibited from employing anyone they know is not authorized to work in the United States or anyone who does not fulfill the Form I-9 documentary requirements. Thus, employers may not retain employees who refuse to present sufficient documents for physical inspection prior to the deadline.

If an individual whose Form I-9 was completed remotely is no longer employed as of August 30, 2023, an employer is not required to take action other than noting this fact and the employee’s date of separation in the “Additional information” box on the Form I-9.

A notice of proposed rulemaking was issued by DHS in August 2022 that would authorize alternative document examination procedures for Form I-9 purposes and the final rule is expected to be released later this year. For now, employers should ensure they are set to be in compliance by the August 30, 2023, deadline. Our attorneys are available to assist with meeting this deadline, as well as to conduct or provide guidance on comprehensive Form I-9 audits.

For more information on the topic discussed, contact:

• Jason B. Klimpl  |  klimpl@thsh.com  |  212-508-7529
• Randi B. May  |  may@thsh.com  |  212-702-3167
• Elizabeth E. Schlissel  |  schlissel@thsh.com  |  212-508-6714
• Andrew W. Singer  |  singer@thsh.com  |  212-508-6723
• Stacey A. Usiak  |  usiak@thsh.com  |  212-702-3158
• Andrew P. Yacyshyn  |  yacyshyn@thsh.com  |  212-508-6792