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Employers Have 30 Days to Reach Compliance After COVID Flexibilities End on July 31, 2023.

The Department of Homeland Security (DHS) and Immigration Customs and Enforcement (ICE) announced on May 4, 2023, that after the COVID-19 flexibilities end on July 31, 2023, companies have 30 days to achieve I-9 compliance. According to this statement, all newly hired employees who were verified remotely must present physical proof of their identification and employment eligibility by August 30.

Although employers have until August 30, 2023, to complete physical examination of documents, it is important to start this process now. Many employers have hundreds, if not thousands, of employees who were onboarded using remote, virtual verification. Thus, it is going to take time for these employers to complete the physical re-verification.

Employees still working from home present a challenge for organizations; how then can physical re-verification be carried out? Employers may use designated representatives to complete Section 2 of Form I-9, according to long-standing immigration legislation. An adult family member, friend, notary public (but not one who is being paid to provide this job), or another person appointed to act as an agent may be the designated representative.

The appointed person or company representative must evaluate the documentation prior to doing the physical re-verification. In the Form I-9, Section 2 “Additional Information” field, one should include “COVID-19 Documents – physically examined on (date) by (name)” if the same employer representative checked the paperwork both virtually and in person. However, one must complete a new Section 2 of Form I-9 and attach it to the previous Form I-9 if the employer representative who electronically checked the documents is different from the person physically inspecting the Employment Authorization and identification documentation.

The COVID-19 precautions caused DHS to announce on March 20, 2020, that it would exercise discretion for all new hires by deferring the physical presence requirements associated with Form I-9 under the Immigration and Nationality Act (INA) where employers and workplaces are operating entirely remotely. This marked the beginning of the flexibility policy. Employers could view Section 2 documents remotely in these circumstances by using a virtual connection (such as a video link, fax, or email). Then, in Section 2 “Additional Information” field, employers were required to specify “COVID-19” as the cause of the physical inspection delay. DHS published a proposed rule on August 18, 2022, that would provide alternate methods of verifying identity and employment eligibility. On October 17, 2022, the period for public feedback was closed. DHS intends to publish a final rule later this year after analyzing public comments

This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).