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What's changing?
U.S. Immigration and Customs Enforcement (ICE) announced on May 04, 2023, that they will allow employers until Aug 30, 2023, to reach compliance with Form I-9 in-person verification requirements. The pandemic rule that allowed employers to verify form I-9 virtually ends on July 31, 2023.
Important deadlines for in-Person or physical verification
Pandemic-era Form I-9 flexibility ends: July 31, 2023
Deadline to comply with in-person I-9 verification: Aug 30, 2023
What's the rule around verification?
Section 2 of Form I-9 requires that an employer or the employer's representative should examine documents presented by the employee to confirm identity and employment authorization to work in the U.S. This should ordinarily be done within three business days of the start of employment.
What should I do?
Employers should start transitioning to conducting physical inspections of completed I-9 forms as soon as possible.
Starting July 31, 2023, employers must follow the pre-pandemic rules of physically verifying I-9 forms for new hires.
Identify all I-9 forms requiring physical inspection
Plan to inspect or re-inspect I-9 forms physically by -
Meeting employees and new hires in person or
Having an authorized representative meet the employee in-person or
Fly out a trained member of the HR team to meet with employees
Can a third party be designated as the employer's representative for verification?
Yes, employers can designate a third party or parties as designated representatives. However, to reduce risk, employers should designate individuals trained in I-9 compliance practices and procedures.
NOTE - In California, only qualified individuals can represent an employer - licensed attorneys, individuals authorized under federal law to provide immigration services, and individuals qualified and bonded as immigration consultants under California law.
Electronic vs. Paper I-9 system
Electronic system - Companies using an electronic system should talk to their vendor and create a workflow to update I-9 forms that now need physical verification.
Paper system - Companies using a paper system should annotate the forms saying they have been physically examined after the inspection.
Will we go back to electronic verification again?
It's hard to say. ICE plans to publish a final rule later this year that may outline situations where virtual verification may be permissible.
Recommendation
We recommend that you talk to your labor law counsel to chalk out a plan that suits you and your company.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.
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