The Department of Homeland Security (DHS) will continue Form I-9 flexibility for another nine months until July 31, 2023, according to an announcement. DHS guidance remains the same. Employees who, due to COVID-19 policies, do not report to a physical location on a regular, consistent, or predictable basis continue to be temporarily exempt from the I-9 in-person verification requirements.
This temporary flexibility has been in effect since March 2020. As it continues and more employees are verified remotely, it becomes more challenging for employers to be prepared for the possible end of flexibility. According to DHS guidance, “[E]mployers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.”
At the same time, DHS is considering permanently adopting the remote verification process. In August 2022, DHS issued a proposed rule that would give the agency to ability to permit remote document inspection permanently – possibly in exchange for requiring E-Verify, updating record retention requirements, or providing training on fraud issues – if it determines security would not be diminished. However, at this time, the timing and scope of a final rulemaking is unknown. It remains to be seen if all employees who have been remotely verified will remain exempted from in-person verification going forward. The notice and comment period for the proposed rule will end on October 18th. In the meantime, Form I-9 flexibility is once again continued temporarily.
DHS also announced that employers should continue to use the current Form I-9 after its October 31, 2022, expiration date until further notice.
Jackson Lewis attorneys are available to assist you in preparing for the possible end of temporary flexibility.