Time Is Running Out for Employers to Comply with Post-COVID Form I-9 Employment Eligibility Verification

During the COVID pandemic, the U.S. Department of Homeland Security (“DHS”) relaxed the usual Form I-9 rules regarding physical inspection of certain employees’ identification and employment eligibility documents, temporarily allowing employers to inspect copies of documents (rather than original documents) or to perform virtual inspection of documents (e.g., by videoconference) (the “COVID-19 Temporary Flexibilities”). The COVID pandemic also saw many employers transition from an in-office to remote workplace. Employers who have extensively hired remote employees in multiple locations over the past three years may find it challenging to comply with the verification process and deadline that now looms.

Once the COVID-19 Temporary Flexibilities end on July 31, 2023, employers must conduct in-person review for all employees hired during the COVID Flexibilities period (anyone hired on or after March 20, 2020), regardless of their remote working status and distance from an office. This in-person physical document inspection must be completed for each such employee no later than August 30, 2023.

The good news is that employers are allowed to use an authorized representative to complete the in-person inspection and fill out the employer’s portion of the Form I-9 on the organization’s behalf. In connection with announcing the end of the COVID-19 Temporary Flexibilities, U.S. Citizenship and Immigration Services has posted Q&As, some of which are directly on point to the remote workplace situation and are addressed by ICE guidance:

• Our company began operating remotely during COVID-19 and will not return to work in office.  Must we still conduct the in-person document inspection for each employee who we hired while using the COVID-19 remote inspection flexibilities?
  Yes.  Employers must physically examine documents for those employees who were hired on or after March 20, 2020, and for whom the employer has to date only conducted a remote inspection consistent with the flexibilities first announced in March 2020. Employers will have 30 days after the end date of the flexibilities on July 31, 2023 – that is, until August 30, 2023 – to complete in-person physical inspection.

• If our employees are all working across the country rather than in my location, how can I complete the in-person inspection?  Are there alternative options?
  Employers may choose to use an authorized representative to fill out their portion of the Form I-9 on their behalf. Authorized representatives may also complete the in-person inspection as needed.

For those employees who are within driving distance of the employer’s headquarters or other location, the requisite in-person inspection and certification can be accomplished by having the employees bring their documents to the office as soon as possible, in any case well before the August 30 deadline.

Authorized Representative Options to Consider for Compliance Next Steps
To deal with the remote employees who are not within convenient driving distance of any employer location, the employer may need to identify and arrange for an authorized representative who can be depended upon to meet in-person with such employees in order to physically/in-person inspect their documents and complete Section 2 of the Form I-9 on behalf of the employer.

As specified in the applicable regulations, “an authorized representative can be any person you designate, hire, or contract with to complete, update, or make corrections to Section 2 (or 3) on your behalf. An authorized representative can be any member of the general public (see exception regarding employees below), personnel officer, foreman, agent, or notary public where permissible. Your authorized representative must perform all of your duties, including reviewing the employee’s completed Section 1, either physically or electronically. You are liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws, committed by the authorized representative you designate.” To avoid compliance issues and potential fines, employers should ensure that only well-trained employees administer the Form I-9 process and monitor any verifications done by the employer’s authorized representative to ensure accuracy and completeness.

To increase the likelihood of the I-9 process being done properly for remote employees, employers may wish to consider:

1. Sending a well-trained current staff member from the employer’s nearest location to meet with individuals or groups of remote employees and handle the inspection and certification process.
2. Arranging with a dependable affiliate or individual in the remote employee’s location (or within reasonable driving distance) to handle the document inspection and complete the certification process. In addition to the possibility of utilizing a local HR professional with I-9 experience to meet with the remote employee, there are numerous vendors whose services include I-9 verification. (See, e.g., https://vendordirectory.shrm.org/category/pre-employment-testing-screening/i-9-verification.)
3. If no better alternative is found, the employer may need to resort to having the remote employee meet with a notary public to assist with the verification process.  In such case, it will be crucial to make clear to the notary that they are not actually notarizing the Form I-9; the mission is simply to confirm the employee’s identity, examine the documents, and then properly and fully complete the certification section on the employer’s behalf. The notary should not stamp a notary seal on the I-9 form, nor add unnecessary verbiage. Also note that, depending on the state law where the remote employee is based, this notary option may not be legally permissible (e.g., CA, TX).

Note that, per DHS, employees cannot themselves serve as the authorized representative for purposes of I-9 verification. Nor should employers allow anyone to conduct the inspection who is related to or friends with the employee. The authorized representative should be a disinterested party.

Because this process could be time-consuming and present logistical difficulties, employers should get an action plan in place at once and set deadlines for the employees to present their original documents in person as soon as possible.

Handling Employee-related Obstacles
Another issue that may arise is what to do with an employee who refuses to cooperate or fails to timely assist with this process. ICE guidance on that point states than “an employer cannot retain an employee who the employer knows is not authorized to work in the United States or that does not fulfill Form I-9 documentary requirements. This includes presenting documentation for in-person physical examination.” As a result, employees therefore need to understand that they must cooperate timely or face termination of employment.

DHS is still reviewing public comments on its pending proposed rule to allow alternative procedures for proof of identity and inspection of employment eligibility documents. In the meanwhile, DHS requires employers to physically inspect each employee’s identification and employment eligibility documents, ensure the full and accurate completion of both the employee’s and employer’s portions of the Form I-9, and properly maintain the required records, in order to be prepared in case of government audit and to avoid liability and fines for non-compliance.

If you have questions about the Form I-9 completion process, please contact Trish Lantzy at [email protected] or 804-683-1737.

A member of our Washington D.C.-based team, Patricia Lantzy is a highly skilled labor and employment attorney with almost 30 years of experience. Trish works with a wide range of clients, from individual executives and small businesses to the Fortune 500, on employment-related issues across the employee lifecycle, including recruiting, hiring, workplace harmony and leave issues, performance and discipline/discharge, corporate reorganizations and reductions in force.