What Do I Do Now That I-9 Flexibilities Are Ending?

Last Updated on September 13, 2023 / HR Compliance

HR Question:

In July 2023, the Department of US Citizenship and Immigration Services eliminated the Form I-9 flexibilities put into place due to COVID-19. Recently, I understand they are again allowing the remote review of I-9 documents. Is this accurate?

HR Answer:

Yes, you’re correct – the US Citizenship and Immigration Services (USCIS) confirmed that the temporary flexibilities for verifying documents for I-9 forms expired on July 31, 2023. Any remote team members hired during the COVID-19 pandemic (on or after March 20, 2020) whose I-9 documents were verified remotely, had to have their documents physically inspected. That verification was required to be completed by August 30, 2023.

While we all scrambled to update these documents, USCIS came out with additional guidance on July 25, 2023, that provided an alternative procedure for Form I-9. The Notice indicated that employers who meet the following four (4) requirements may choose an alternative procedure in lieu of physically examining Form I-9 documentation that had been examined remotely under the COVID-19 flexibilities.

To qualify for the alternative procedure, an employer must have:

1. Performed remote examination of an employee’s documents between March 20, 2020, and July 31, 2023;
2. Been enrolled in E-Verify at the time they completed the Form I-9 for that employee;
3. Created a case in E-Verify for that employee (except for re-verification); and
4. Be currently enrolled in and continue to participate in E-Verify.

Employers who do not meet all four requirements must perform an in-person physical examination of documents by August 30, 2023.

The USCIS provides details on the alternative procedure and examples of properly completed forms.

New Form and Additional Flexibilities

Although many HR professionals celebrated the alternative procedure that was provided, we had more to celebrate when the flexibility was extended. In August 2023, the USCIS allowed permanent remote examination of employees’ Form I-9 documents IF they are enrolled in the E-Verify program. For more guidance, refer to the detailed alternative procedure.

Finally, the department did issue a new I-9 form in August 2023. The form dated “10/19/2019” can continue to be used through October 31, 2023, but beginning November 1, 2023, only the new Form I-9 dated “08/01/2023” can be used.

What if an Employee Refuses?

If an employee is unwilling or unable to provide documentation for physical confirmation or remotely if you qualify, that employee is subject to termination. Employers cannot retain an employee who has not provided documentation for the I-9 form, including presenting their documents for physical inspection. Organizations that retain an employee who is not authorized to work in the United States, or who have not reviewed documentation in person, are subject to hefty fines by the USCIS.

Remember, I-9 forms should be kept in a separate file from the employee’s personnel file, and make sure you retain the updated I-9 forms. For additional information, be sure to check out USCIS’s FAQ for Employers.

Special thank you to Patti Dunham, MBA, MA, SPHR, SHRM-SCP, Director of HR Solutions and Sheryl Fleming, MA, SHRM-SCP, HR Business Advisor for contributing to this edition of our HR Question of the Week!

I-9 forms and other employment verification processes are important to get right – otherwise, you might be subject to costly fines and legal fees. Let our HR experts lend a hand! Learn more about how we can support your compliance efforts by visiting our HR Compliance and Recordkeeping page or by contacting us today.