U.S. Immigration and Customs Enforcement (ICE) announced that employers will have 30 days to comply with Form I-9, Employment Eligibility Verification, requirements after the COVID-19 flexibilities sunset on July 31, 2023. This means that all employers must complete all required physical inspections of identity and employment eligibility documents by August 30, 2023. The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced this update on May 4, 2023.

Since March 2020, ICE has deferred the requirement for employers to review employees’ identity and employment authorization documents in person. Instead, they have allowed remote inspections with the expectation that physical inspections of those documents would occur within three business days after normal operations resumed. The COVID-19 flexibilities were subsequently extended throughout the pandemic. In October 2022, DHS and ICE announced that the flexibilities would again be extended until July 31, 2023.

Importantly, DHS has announced that employers can only 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. Today’s announcement clarifies for employers that they have until Aug. 30, 2023, to perform all required physical examination of identity and employment eligibility documents for those individuals hired on or after March 20, 2020, and who have only received a virtual or remote examination under the flexibilities.

Under the flexibilities, employers with employees taking physical proximity precautions due to the COVID-19 pandemic were allowed to temporarily defer physical examination of employees’ identity and employment authorization documents. Instead, employers could examine the employees’ documents remotely over video link, fax, or email and enter “COVID-19” as the reason for the physical examination delay in the Section 2 Additional Information field when physical examination took place in the future.

DHS issued a proposed rule on Aug. 18, 2022, that would allow alternative procedures for the examination of identity and employment eligibility documents. The public comment period closed on Oct. 17, 2022. DHS is currently reviewing public comments and plans to issue a final rule later this year. In the meantime, employers must ensure they are prepared to complete all required physical inspections of identity and employment eligibility documents by the August 30, 2023, deadline.

This information is distributed for informational purposes only. For further questions, please contact a G&A attorney for assistance.