What HR should know about the end of I-9 flexibilities

Throughout the pandemic, employers were allowed to verify employees’ I-9 documents remotely. That’s set to change this summer.
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After three years of leniency, US employers who introduced work-from-home policies during the Covid-19 pandemic will no longer be exempt from in-person inspections of identity and employment eligibility forms for new hires. The government will end the granted flexibility from 2020, effective July 31.

The change could prompt headaches for HR departments that had gotten comfortable with a more flexible system, particularly if their firm went through intense periods of hiring during the pandemic.

How we got here. All US employers are required to submit documentation verifying the identity and work authorization of each person they hire through a form called I-9. An employer or authorized representative “must physically examine, in the employee’s physical presence,” an employee’s documents, such as a passport or citizen ID card, per instructions from US Citizenship and Immigration Services (USCIS) dating back to 2019.

When companies across the US started shutting down offices and asking employees to work from home due to the pandemic, groups such as SHRM lobbied the federal government to grant flexibility to employers on I-9 compliance, according to Dawn Lurie, senior counsel with law firm Seyfarth Shaw, based in Washington, DC. They argued such flexibility was necessary for companies seeking to ramp up hiring in response to the pandemic.

The Department of Homeland Security (DHS) granted these flexibilities, allowing employers to inspect I-9 documents via video, fax, or email, rather than in-person. “The bottom line is that for many of these people that were hired from March 2020 to today, there’s never been an identification,” meaning an in-person inspection of an employee’s identity and work authorization documents, Lurie told HR Brew.

That’s set to change, as Immigration and Customs Enforcement (ICE) recently announced it will sunset these flexibilities at the end of July. HR departments will have to go back and ensure all employees’ I-9s have been physically inspected by Aug. 30, 2023. Going forward, regardless of whether their firms are remote, hybrid, or in-person, I-9 documents will have to be examined this way.

“It doesn’t matter whether or not your people are coming in or not, you…have to do [a] physical inspection,” Lurie said. “You have no more choice.”

What a “physical” inspection entails. Companies who have employees all over the country need not fret—the sunsetting of these flexibilities doesn’t mean employees will have to fly to company headquarters, just to show off their passports.

The government has long allowed an “authorized representative” to inspect I-9 forms, and companies with distributed workforces are increasingly using this approach to onboard workers.

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This representative “can be any person the employer designates to complete and sign Form I-9 on their behalf,” per ICE. A company might allow an employee’s friend or family member to inspect I-9 documents and complete the form, for example.

While Lurie admits she was skeptical of such an approach prior to the pandemic, she said company audits have revealed there aren’t as many issues with this approach as one might have expected.

“With the right process…and rules, it’s fine,” she said.

Should HR departments decide to comply with I-9 requirements through an authorized representative, “We would just recommend establishing a clear process for implementing this approach” to help ensure compliance, Samantha Wolfe, of counsel at law firm Ogletree Deakins, based in Denver, told HR Brew. They should keep in mind the company will be liable for any mistakes authorized representatives make on I-9 forms, she added.

Wolfe recommended conducting an audit of employees’ I-9 forms in order to prepare to comply with the government’s guidance by Aug. 30. This way, HR departments can make a list of whose I-9 documents need to be physically inspected and reach out to these employees. Section two of these employees’ I-9 forms will need to be updated once an employer or authorized representative has physically examined their documents. If the documents an employee presented are lost or unavailable, Wolfe said, they’ll have to fill out a new I-9 form.

Changes likely on the horizon. Even as employers scramble to comply with the new (old) I-9 requirements by Aug. 30, there’s a strong possibility the federal government will introduce permanent virtual options within the next year, according to legal experts who spoke with HR Brew.

Last year, DHS issued a proposed rule that would allow employers to inspect I-9 forms remotely. Public comment on the proposal ended in October, and the government said it plans to issue a final rule later this year.

Though it’s likely the government will relax its rules on I-9 inspection in the near future, it’s best for HR pros to get all their ducks in a row to comply with the in-person system by the end of August. Failure to do so could result in penalties ranging from fines to criminal exposure, Wolfe said.

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News built to help HR pros grow their impact & improve the future of work.