The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced on Thursday, May 4, 2023, that employers will have 30 days to reach compliance with Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023. These flexibilities were first announced in March 2020 and subsequently extended throughout the COVID-19 pandemic.
What to Expect
The DHS and ICE announcement clarifies that employers have until August 30, 2023, to perform all required physical examinations of identity and employment eligibility documents for those individuals hired on or after March 20, 2020, and who have only received a virtual or remote examination under the flexibilities.
DHS encourages employers who have been using those temporary flexibilities to plan to ensure that all required physical inspection of identity and employment eligibility documents is completed by Aug. 30, 2023.
Background
- In March 2020, ICE announced that it would defer the requirement that employers review employees’ identity and employment authorization documents in the employees’ physical presence, instead allowing that to occur remotely, with the expectation that physical inspection would occur within three business days after normal operations resumed.
- In follow-on guidance, ICE noted that employers could continue to implement the flexibilities until affected employees undertake non-remote employment on a regular, consistent, or predictable basis or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.
- In October 2022, DHS and ICE announced that the flexibilities would be extended until July 31, 2023.
Erickson Insights
On August 18, 2022, DHS issued a proposed rule that would allow alternative procedures for examining identity and employment eligibility documents. The public comment period closed on October 17, 2022. DHS is currently reviewing public comments and plans to issue a final rule later this year.
Erickson Immigration Group will continue to share updates as more news is available. If you have questions about anything we’re reporting or case-specific questions, please contact your employer or EIG attorney.