ICE Gives Employers Until August 30 for In-Person Form I-9 Verification After COVID Flexibilities Expire

On May 4, 2023, U.S. Immigration and Customs Enforcement (ICE) announced it will provide employers with 30 days to reach compliance with Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023. Employers will now have until August 30, 2023, to complete all required physical inspections of identity and employment-eligibility documents. This extension aims to ease the transition for employers who have been using the temporary flexibilities throughout the pandemic.

Background 

In March 2020, ICE introduced the temporary flexibilities in response to the COVID-19 pandemic, allowing employers to review employees’ identity and employment authorization documents remotely, rather than in person. This virtual inspection was to be followed by a physical examination within three business days after normal operations resumed. The flexibilities were extended several times, with the most recent extension set to expire on July 31, 2023.

During the pandemic, employers with employees taking physical-proximity precautions were allowed to temporarily defer physical examination of employees’ identity and employment authorization documents. Remote examination methods, such as video link, fax or email, were permitted, with “COVID-19” entered as the reason for the physical-examination delay in the Section 2 Additional Information field on the Form I-9. Once the employees’ documents were physically examined, employers would add “documents physically examined” with the date of examination to Section 2 or Section 3 of the Form I-9, as appropriate.

The recent announcement clarifies that employers have until August 30, 2023, to perform all required physical examinations of identity and employment-eligibility documents for individuals hired on or after March 20, 2020, who have received only a virtual or remote examination under the flexibilities.

What’s Next 

On August 18, 2022, ICE issued a proposed rule to allow alternative procedures for examining identity and employment-eligibility documents. CUPA-HR submitted comments to ICE encouraging it to move forward expediently and ensure that a remote review process remains available for all employers. The public comment period closed on October 17, 2022, and DHS is currently reviewing the comments. While the Fall 2022 Regulatory Agenda had forecast a final rule to be issued in May 2023, ICE’s announcement indicates a final rule will be issued later this year.