I-9 Covid Virtual Flexibilities End and New Form I-9 Available

As of August 1, 2023 Covid-19 flexibilities for virtual Form I-9 document review have ended and the U.S. Citizenship and Immigration Services (USCIS) announced a new version of Form I-9. The Form I-9 dated “10/19/2019” may continue to be used through Oct. 31, 2023.  

History:  

From March 2020 until July 31, 2023, the Department of Homeland Security (DHS) allowed for flexibilities for virtual Form I-9 document review in certain circumstances related to Covid-19 precautions. These flexibilities were limited after April 2021 and did NOT apply in the following circumstances and required employers to complete a physical Form I-9 document review where:  

• the employer was no longer taking COVID precautions; 
• the employee is a fully remote worker hired after April 1, 2021 (not working remotely only on a temporary basis as a result of COVID); or  
• the employee(s) are back in the office on a regular and consistent basis.  

As a result, as employees returned to the office, the update to the Form I-9 with a physical inspection of the document(s) was required within 3 days of the employee first returning to the office. Any employers that were still utilizing the Covid virtual I-9 flexibility must now plan to complete physical inspection of documents for Forms I-9 by August 30, 2023. 

For employees that continue to be fully remote, physical examination of the I-9 documents may seem challenging. However, employers may utilize designated representatives to complete Section 2 of the Form I-9. The designated representative may be an adult family member, friend, notary public, or other designated person to act as an agent. If the designated official is the same official who completed the virtual examination, then Section 2 of the I-9 ‘additional information’ field needs to be updated. If the examiner is different from the virtual examiner, then a new section 2 of the I-9 should be attached to the old I-9.  

Optional Alternative to Physical Document Examination for certain employers. 

DHS has also announced an Optional Alternative to Physical Document Examination for certain employers.  The American Immigration Lawyers Association has issued a practice pointer regarding the new Optional Alternative examination.  

As of August 1, 2023, certain “qualified” employers may complete a virtual document inspection process to update I-9s completed with the Covid-19 flexibilities.  Qualified employers are defined as those who: 

1. 1. Are enrolled in E-Verify in good standing; 

1. 2. Were enrolled in E-Verify at the time that they performed a remote examination of an employee’s Form I-9 documentation (for Section 2 or for reverification) under the COVID-19 flexibilities; 

1. 3. Created an E-Verify case for that employee (unless the documentation was reviewed solely for reverification); and 

1. 4. Performed the remote inspection between March 20, 2020, and July 31, 2023. 

Procedure for Optional Alternative: 

1. 1. Obtain and retain copies (front and back, if the document is two-sided) of the Form I-9 documentation being presented by the employee for Form I-9 purposes; 

1. 2. After the employee transmits a clear copy of the documentation, the employer must conduct a live video interaction with the employee in which the employee displays the documentation; and 

1. 3. Annotate the Form I-9 to indicate that the required update to the I-9 was conducted under the alternative procedure. This can be done by adding “Alternative Procedure” and the date virtual examination to the “Additional Information” field in Section 2 of the Form I-9 (or to Section 3 for reverification, as applicable) 

The document copies must be retained with the Form I-9 and presented to DHS in the event of an I-9 inspection. It is important for employers to work with an experienced attorney to regularly audit their I-9s to ensure compliance, reduce their potential exposure, and avoid fines.