Flexibility measures enacted during the COVID-19 pandemic related to the inspection of identity and work eligibility documents are scheduled to end July 31.
That means employers must physically inspect identity and work eligibility documents used to support an I-9 form completed remotely during the pandemic by Aug. 30.

In March 2020, the U.S. Department of Homeland Security (DHS) allowed employers that took physical proximity precautions due to COVID-19 to remotely verify identity and work eligibility documents used to support an I-9. If employees were physically present at a work location, DHS allowed no exceptions to the rule documents must be physically inspected. The exception applied only to employers and workplaces that operated remotely. And once employees returned to a physical workplace, the employer was required to inspect documents physically. This exception caused confusion for some employers, who took the exception to mean remote inspection of documents was permissible for all remote employees.

On March 31, 2021, DHS clarified the requirement to physically inspect documents during the COVID-19 pandemic applied to employees who physically reported to work at a company location on “any regular, consistent or predictable basis.”

DHS now returns to the rules in place when COVID-19 interrupted workplace operations. Employers must physically inspect identity and work eligibility documents for all employees. Employers have only 30 days to determine which employees’ identity and eligibility documents were not physically inspected upon hire and to physically inspect those documents. Employers must physically inspect all documents after July 31.

There are no exceptions for remote employees.  Employers with remote employees who aren’t near the employer’s work locations must arrange for physical inspection of documents. The employer may appoint any agent to inspect the documents and sign the verification in Section 2 of the I-9. This representative could be another company employee living in that area, a notary public or the CEO’s grandmother. But the employer is liable for the actions of its agent if the agent doesn’t complete the inspection and I-9 properly. Many employers use a notary public. If a notary public completes Section 2, the notary public should not affix a notary seal, but only sign Section 2 as any employer representative would do.

On the positive side for employers, relief could be on the way. On Aug. 8, 2022, DHS published a proposed rule that would allow DHS to consider alternative options for document examination procedures, including reviewing employees’ documents remotely. It’s possible DHS will announce the new rule when the prior flexibility measures sunset on July 31. But there are no guarantees that will happen. Employers should take steps now to physically inspect the identity and work eligibility documents of all employees whose documents weren’t inspected physically. This is also an excellent time to conduct an audit of I-9 files and correct any deficiencies not related to COVID-19. Employers should plan now to physically inspect the documents of all new employees moving forward until the DHS announces a new rule allowing permanent flexibility in document inspection methods.

Now, let’s go back to the basics briefly to review the process as a whole. An employer is required to complete an I-9 within three days of when an employee starts work.  The I-9 form is simple. In Section One, the new employee provides information about themselves. In Section Two, the employer lists the document or documents the employee uses to establish their identity and eligibility to work in the United States. The employer or its agent physically inspects the documents to ascertain they appear genuine.

The employee may present a document that establishes both identity and work eligibility (List A document), such as an Employment Authorization Document (EAD) card, a Permanent Resident Card (PRC or “green card”) or a passport. Note that the ‘green card” might be a variety of colors. It was named the green card because the original resident alien cards were green. Alternatively, an employee may present an identity document (List B), commonly a state driver license or ID card and a document that establishes eligibility to work in the United States. The most common is an unrestricted Social Security number. The DHS provides a list of A,B and C documents and pictures of these documents at https://www.uscis.gov/i-9-central/form-i-9-acceptable-documents.

Some issues commonly arise in completing the I-9 and examining documents:

The employer may not specify which documents the employee will present. The employee may select any documents that meet requirements to establish identity and work eligibility.

The employee presents documents in a name other than the name the employee lists in Section One. The employer should take steps to determine the proffered document reasonably relates to the employee. The employer may attach a memo explaining the name discrepancy.

The employer may not accept an expired document to support the I-9 except for EADs or PRCs that appear expired, but are extended by a Federal Register notice.  This became more common during the pandemic, when long DHS case backlogs developed.

The employer may temporarily accept a receipt showing an employee has applied to replace a lost, stolen or damaged document. But the employee must provide the replacement document within 90 days. The employee may present acceptable documents during this 90-day period that differ from the document for which the employee originally provided a receipt.

While receipts are acceptable during the new hire process, an employer may not accept a receipt for a document that requires recertification. Employers should remind employees well in advance of their recertification date and the need to present a valid document.

This is a basic overview of the I-9 process and changes to the document examination process. The DHS offers a wealth of information online at the website located at  https://www.uscis.gov/i-9-central.

Members of the Employers Council will find extensive resources on the member website. Employers Council consulting and enterprise members may call for legal assistance with I-9 questions.