WHAT IS THE COVID-19 FLEXIBILITY POLICY?
With the onset of COVID-19, in March 2020, ICE began providing flexibility to the in-person verification of identity and employment eligibility documentation for completing Form I-9. Under that COVID-19 Flexibility Policy guidance, employers were allowed to verify I-9 documentation remotely instead of in-person, with the expectation that physical inspection would occur within three business days after normal operations resumed. In follow-on guidance, ICE later noted that employers could continue to implement the flexibilities until affected employees undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.
WHAT IS THE RECENT ANNOUNCEMENT ABOUT THE COVID-19 FLEXIBILITY POLICY?
Recently, DHS and ICE announced that the COVID-19 Flexibility Policy will end on July 31, 2023, and that employers have until August 30, 2023, to perform all required physical examination of identity and employment eligibility documents for those individuals hired on or after March 20, 2020 who have only received a virtual or remote examination under the COVID-19 flexibilities originally announced in March 2020.
DHS is encouraging employers who have been using those temporary flexibilities to plan ahead to ensure that all required physical inspection of identity and employment eligibility documents is completed by August 30, 2023.
HOW CAN EMPLOYERS PREPARE FOR THE FLEXIBILITY POLICY’s EXPIRATION?
Employers should consider taking the following steps in anticipation of the policy’s July 31st expiration:
- Prepare and maintain a list of all employees who were hired and verified virtually since March 20, 2020. The list should include dates for when employees will return to work on a regular, consistent, or predictable basis, as well as the deadline for in-person verification (August 30, 2023).
- Consider designating a person or agent to conduct the in-person verifications. Those designated should devise a plan for when and how they will reach out to employees on the list.
- Ensure that those individuals or agents designated to conduct in-person verifications do so for each employee on the list as they return to worksites
- Consider also having an agent conduct in-person verification of identity and employment authorization documents for employees while they are working remotely, instead of waiting for the August 30, 2023 deadline.
WILL THERE BE ALTERNATIVE OPTIONS FOR EMPLOYERS TO EXAMINE DOCUMENTATION FOR THOSE SEEKING TO ESTABLISH IDENTITY AND EMPLOYMENT AUTHORIZATION?
On August 18, 2022, DHS issued a proposed rule that would allow alternative options to physical Form I-9 document examination that offer equivalent or higher levels of security for identity and employment eligibility verification purposes. The public comment period closed on October 17, 2022. DHS is currently reviewing public comments and plans to issue a final rule later this year.
The Corporate Immigration Team of Nilan Johnson Lewis continues to monitor Form I-9 updates. Employers are encouraged to contact our team with any questions they may have.