Background
DHS recently announced that the temporary flexibilities for virtual Form I-9 document review (temporary virtual option) will end on July 31, 2023, and employers must complete the required physical inspection for all Forms I-9 created under the temporary policy no later than August 30, 2023.
Failure to timely complete inspection is a substantive I-9 violation, and may result in significant fines.
Logistics
Employers may be struggling to comply with physical inspection of Form I-9 documentation may wish to consider using an authorized representative or designated agent model to assist in the process. This option is unrelated to Covid-19 accommodations, and involves a third-party agent stepping into the shoes of the employer to complete Section 2 (or Section 3) of the Form I-9 on an employer’s behalf.
While there are vendors that offer authorized agent services, relying on them can be tricky as they do not usually offer any particular quality control or training. Instead, (largely out of necessity) many employers have allowed friends and family members of the employee to serve as the representative to assist with reviewing identity and employment eligibility documents. If employers choose to use this method, it is imperative that clear Standard Operating Procedures and directives should be created and best practices, including post-verification completion audits and document copying mandates, outlined to ensure accuracy and compliance. Inasmuch as employers are liable for the representative’s actions and any errors on the form, adding these guardrails is critical.
How should employers update their Forms I-9?
How you update the Forms I-9 will depend on whether your company uses paper Forms I-9 or an electronic I-9 system. Electronic I-9 vendors should have created workflows to identify and then update temporary virtual option Forms I-9. Not all of them did so. If there is no workflow, SGG is available to help develop a manual process. Generally, those using electronic I-9 systems should work with their vendor to record the new information in the additional information box or in a new Section 2, while also ensuring the annotations mandated by DHS are included on the form. They should also ensure that the required annotations noting both the initial virtual completion and then the subsequent physical inspection are placed on the form. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) have provided limited guidance for updating Forms I-9 once the physical inspection occurs (see examples on the USCIS website).
You may find it useful to review the USCIS FAQs, Questions and Answers Related to the End of ICE COVID-19 Flexibilities, although much of the guidance is tailored for paper Form I-9 completion.
Looking Ahead
We expect to see a permanent virtual Form I-9 document rule issued in the coming months following a DHS request for public comment on a Notice of Proposed Rulemaking published in the Federal Register on the possibility of expanding verification options. While this is a positive development and the forthcoming rule may enable alternate procedures for Form I-9 document verification that include permanent virtual document review, permission to conduct virtual Form I-9 inspections because of the pandemic is ending July 31, 2023, and the deadline for physical inspection is August 30, 2023.