On May 4, 2023, the U.S. Department of Homeland Security (DHS) and the U.S. Immigration and Customs Enforcement (ICE) announced that employers will have 30 days to reach compliance with “Form I‑9, Employment Eligibility Verification” requirements after the COVID-19 flexibilities sunset on July 31, 2023, according to a news release from ICE.
The Form I-9 flexibilities were first announced in March 2020 and subsequently extended several times throughout the COVID-19 pandemic. The DHS encourages employers who have been using those temporary flexibilities to plan ahead to ensure that all required physical inspection of identity and employment eligibility documents is completed by August 30, 2023.
In March 2020, DHS announced that it would defer the requirement that employers review identity and employment authorization documents of employees in the physical presence of employees, instead allowing that to occur remotely, with the expectation that physical inspection would occur within three business days after normal operations resumed.
As noted in the March 2020 announcement, employers with employees taking physical proximity precautions due to the COVID-19 pandemic were allowed to temporarily defer physical examination of identity and employment authorization documents. Instead, employers could examine the documents of employees remotely and enter “COVID-19” as the reason.
In follow-up guidance, ICE noted 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. In October 2022, DHS and ICE announced the flexibilities would extend until July 31, 2023.
The May 2023 announcement from DHS and ICE clarifies for employers that they have until August 30, 2023, to perform all required physical examination 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 Form I-9 flexibilities for COVID-19.
Since the first expiration date of May 19, 2020, the flexibilities in Form I-9 requirements were extended to June 19, 2020, July 19, 2020, August 19, 2020, September 19, 2020, November 19, 2020, December 31, 2020, January 31, 2021, March 31, 2021, May 31, 2021, August 31, 2021, December 31, 2021, April 30, 2022, October 31, 2022, and lastly July 31, 2023.
In August 2022, DHS issued a proposed rule on “Optional Alternatives to the Physical Document Examination Associated With Employment Eligibility Verification (Form I-9)” for examining identity and employment authorization documents. The public comment period closed in October 2022. DHS is reviewing the public comments and plans to issue a final rule in 2023.
ClearStar is a leading provider of Human Capital Integrity technology-based services specializing in background checks, drug testing, and occupational health screening. ClearStar offers employers pre-employment screening that includes employment eligibility verification of Form I-9s to ensure legal workforces. To learn more about ClearStar, contact us today.
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