Effective July 31, 2023, the U.S. Department of Homeland Security (DHS) will terminate the Form I-9 flexibilities that have been in place since March 2020. Under these flexibilities, DHS exercised its discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) until the COVID-19 National Emergency was formally terminated. DHS has now lifted the national emergency and clarified employers have until August 30, 2023, to perform physical, in-person examination of any documents that were reviewed virtually since March 2020. Under the discretionary provisions, employers were allowed to inspect Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents within three business days in order to complete Section 2.

What Employers Need to Do

Employers operating under the I-9 flexibilities during the pandemic now must take the following actions:

• For any new I-9s completed or reverified after July 31, 2023, employers must perform physical, in-person document examination. Employers may no longer virtually inspect Section 2 documents.

Employers should be reminded that under the current regulations, employers may still designate an authorized representative to complete Section 2 or 3 of Form I-9 on behalf of the company. Not only does this include personnel officers, foremen, agents, or notaries public, but also may include friends and family of the employee. This has always been an option and has not changed. It is important to note, however, the employer remains liable for any violations in connection with the form or the verification process. If an employer uses an agent under this provision, we recommend the employer be virtually present via video conference to monitor the process and ensure all required steps are completed.

• By August 30, 2023, employers must perform a physical, in-person inspection of any I-9 documents that were reviewed virtually since March 20, 2020. This does NOT, however, include I-9s that were reviewed in-person by an agent designated by the employer. Employers participating in the E-Verify program are also subject to this requirement, as E-Verification is simply an additional step to be taken after the normal I-9 process is completed.

How to Update your Virtually Inspected I-9 Forms

• If the same employer representative who initially virtually inspected the documents will also physically inspect the documents, the employer should add “COVID-19 documents physically examined” with the date of inspection and initials to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
• If the employer has designated a different representative for in-person review from the individual who conducted the initial remote/virtual review of documents, the recommended practice is to execute a new Section 2 so the reviewer can sign the attestation in Section 2. This newly executed Section 2 should be attached to the original Form I-9. Employers should then update the Additional Information box on the original Form I-9 with the following annotation: “COVID-19 Documents physically examined on MM/DD/YYYY by [name]”

Our immigration team offers the following top 10 (plus a bonus!) best practices for how to stay compliant with I-9 regulations:

1. Complete an I-9 for all employees, including U.S. citizens, and keep them on file for all current employees
2. Have your employee complete Section 1 on his or her first day
3. Do not request more documentation than is required to show identity and employment authorization, or ask for a particular document to show identity or employment eligibility
4. You may complete the I-9 early (i.e. before the first day of employment), but not before offer and acceptance of employment
5. Promptly re-verify employment authorization 90 days prior to expiration
6. After employment ends, keep I-9s for at least three years from the date of employment or for one year after the employment ends, whichever is later
7. Conduct regular self-audits of I-9 files to find discrepancies or errors
8. Promptly destroy records that are not required to be maintained
9. Keep I-9 records separate from personnel files. This limits undue access by the government agencies with authority to inspect your I-9s
10. Keep copies of the documents presented by the employee with the I-9 form
11. Avoid “citizen-only” or “permanent resident-only” hiring policies unless required by law, regulation or government contract

Harris Beach has prepared summaries of document retention in the immigration context and I-9 compliance for your reference.

Remember: I-9s can be retained in paper or electronic formats. You may keep completed paper forms on-site or off-site, as long as you are able to produce the I-9 forms within three days of an inspection request. Harris Beach immigration attorneys perform I-9 and other audits of required employment records, advise on document retention and correction requirements, and offer training on completion and maintenance of I-9 records.

If you have questions about this subject or other related matters, please reach out to immigration attorney L.J. D’Arrigo at (518) 701-2770 and ldarrigo@harrisbeach.com, or to the Harris Beach attorney with whom you most frequently work. For more insight into legal support for your immigration compliance, visit our Immigration Practice Group page.

Because of the highly fluid and rapidly changing nature of the current immigration environment, we encourage you to regularly consult our website and subscribe to our Immigration Blog for more information about developing immigration issues.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.

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