Navigating the End of COVID-19 Flexibilities for I-9 Document Review (June 13, 2024)

Background on COVID-19 Flexibilities

During the COVID-19 pandemic, U.S. Immigration and Customs Enforcement (ICE) allowed employers to remotely inspect I-9 documents to accommodate social distancing measures. This flexibility permitted employers to review documents via fax, email, or video conferencing. However, these temporary measures expired on July 31, 2023, necessitating a return to in-person document inspections.  As of July 31, 2023, the temporary flexibilities introduced during the COVID-19 pandemic for remote I-9 document inspection have ended. Employers must now resume the physical inspection of identity and employment authorization documents. This blog provides a comprehensive overview of the changes and offers guidance on how to ensure compliance.

Key Deadlines and Requirements

Employers had until August 30, 2023 to complete the physical inspection of documents for employees whose documents were previously inspected remotely by this date. This applies to all employees hired on or after March 20, 2020, whose documents were not physically inspected.  What steps should be taken to ensure employer compliance?

• Identify Affected Employees: Determine which employees had their documents inspected remotely and require physical re-inspection.
• Conduct Physical Inspections: Arrange for in-person document inspections. This can be done by a company representative or an authorized third party.
• Form I-9: Annotate the Form I-9 to reflect the date of the physical inspection and the initials of the person who conducted it.

Alternative Procedure for E-Verify Employers

Effective August 1, 2023, employers in good standing with E-Verify can use an alternative procedure for virtual document review. This involves:

• Collecting and securely reviewing copies of identity and work authorization documents.
• Conducting a live video interaction to compare the documents with the individual.
• Annotating Form I-9 to indicate the use of the alternative procedure.

Penalties for Non-Compliance

Failure to comply with the updated I-9 requirements can result in significant fines. As of February 13, 2023, fines for paperwork violations range from $281 to $2,789 per I-9 form. Employers with over 50% of their I-9s containing errors could face fines close to $2,700 per form. Factors such as employer size, good faith efforts, and the seriousness of violations can adjust fines by ±25%.

Special Considerations for Remote Employees

Employers with fully remote employees must still comply with physical inspection requirements. Options include:

• Designating an authorized representative, such as a notary public (where permissible), a family member, or a friend, to conduct the physical inspection.
• Utilizing third-party services that offer trained I-9 completers.

Conclusion

The end of COVID-19 flexibilities for I-9 document inspection marks a significant shift back to pre-pandemic procedures. For those enrolled in E-Verify, the new alternative procedure offers a streamlined option for virtual document review. Employers should review their I-9 processes, conduct necessary inspections, and update forms to avoid potential penalties.

For further assistance or questions regarding I-9 compliance, please contact our law firm. We are here to help you navigate these changes and ensure your organization remains compliant with federal regulations.