Remote inspection of Form I-9 documents is about to become a thing of the past (at least for now). According to a recent Department of Homeland Security (“DHS”) announcement, employers will no longer be allowed to remotely inspect employees’ Form I-9 documents as of July 31, 2023, and employers who remotely inspected employees’ Form I-9 documents during the pandemic will need to re-inspect their physical documents in-person by August 30, 2023.
By way of background, federal law requires employers to complete Form I-9s to verify their employees’ employment eligibility. As part of this, employers are charged with inspecting documents like passports and driver’s licenses to confirm an employee’s identity and authorization to work in the United States. In the past, employers were required to conduct these inspections in-person with physical documents. However, in 2020, bending to the exigencies of the COVID-19 pandemic, the DHS temporarily allowed employers to inspect some employees’ documents remotely.
With the DHS rolling back its flexibilities this summer, employers will not only have to revert to traditional, in-person physical Form I-9 inspection protocols for new hires, but will also have to re-inspect the physical documents, in-person, of any employees whose documents were inspected remotely during the pandemic. Some employers may have employees who are still working remotely or live a considerable distance from the office, making an in-person inspection cumbersome. Fortunately, Form I-9 guidelines allow employers to designate any individual as an authorized representative to perform the in-person document inspection on their behalf, regardless of whether they are affiliated with the employer, although it may be advisable to choose a trusted agent rather than an employee’s friend or family member. The individual simply describes the documents they reviewed and signs a certification as the employer’s authorized representative. The representative does not need to be the same person who performed the remote inspection. It is important to note that an employer remains liable for any violations of the form or verification process when using an authorized representative.
This return to the status quo may itself be temporary, as the DHS published a Notice of Proposed Rulemaking last year which would allow it to authorize alternatives to physical examination, such as remote inspection. The DHS anticipates publishing a Final Rule to implement the proposal.
In light of this development, employers should review their Form I-9 document inspection practices. In particular, employers should ensure that they: (i) are ready for in-person inspection to recommence as of July 31, 2023, to the extent remote onboarding remains in place; (ii) implement processes for the in-person re-inspection of documents for current employees who onboarded remotely during the pandemic; and (iii) inspect the physical documents of those current employees by August 30, 2023.