June 28th, 2023 | Sterling

Department of Homeland Security to End I-9 Temporary Flexibility Policy: What Are Next Steps?

On May 5, 2023, the Department of Homeland Security (DHS) announced the termination of Covid-19 temporary flexibilities and remote inspection of Form I-9 supporting documents. Following this announcement, employers are now required to perform in-person physical document inspections for employees whose documents were inspected remotely under the temporary remote inspection flexibilities,

What do employers need to know about the DHS announcement, and how can they manage this transition back to physical document inspection for Form I-9s compliantly?

Initiating Temporary Flexibilities

When the Covid-19 pandemic began in March 2020 in the U.S., the Centers for Disease Control and Prevention (CDC) issued guidance for social distancing intended to help reduce and slow transmission of the virus. Almost overnight, companies embraced remote employment where possible to enable social distancing and risk reduction. As a result, an estimated 60% of the American workforce transitioned to working from home.

In response to the public health emergency, the Department of Homeland Security (DHS) issued a temporary compliance flexibility designed to assist employers when hiring employees who were not physically reporting to work. Under the temporary flexibilities, employers were exempted from the physical inspection requirement associated with the employment eligibility verification in Section 2 of the Form I-9. Temporarily, remote inspection of the employee documents was permitted.

The terms of the temporary flexibilities specified that employers would be required to provide physical inspection of the presented documents when employees returned full-time to the office or the flexibilities were terminated. At the time of issuance, a return to office was anticipated to occur in just 60 days. In line with the scope of the pandemic, however, the temporary flexibilities were extended multiple times and kept in place for more than three years.

The End of Temporary Flexibilities

On May 11, 2023, the CDC announced the end of the Covid-19 public health emergency.  In alignment with this declaration, DHS published its termination of the temporary compliance flexibilities and announced two critical dates:

• Beginning July 31, 2023, it is no longer permissible for employers to exercise the temporary compliance flexibilities. All documents supporting employment eligibility for Section 2 of the Form I-9 must be physically inspected in-person.
• As of August 30, 2023, in-person physical document inspections must be completed for employees whose documents were inspected remotely using the temporary flexibilities.

Employers who do not achieve compliance with these milestones run the risk of being subject to fines if audited by U.S. Immigrations and Customs Enforcement (ICE).

Next Steps Now That Temporary Flexibilities Are Ending

The termination of the temporary compliance flexibilities presents employers with two significant challenges:

1. Employers must examine over three years of new hire Form I-9s and determine which ones were remotely inspected.
2. Employers then need to complete in-person inspections for employees who were covered by the temporary flexibility by August 30, 2023.
3. With more employees working remotely than ever, employers need to create processes for physically inspecting the supporting documents for remote hires, and put those processes in place by July 31, 2023

Below is a summary of recommended next steps employers should action to support the recent DHS announcement.

Step 1 | Identify your Form I-9s that were completed using temporary flexibilities.

Manually sorting through three years of Form I-9s is a daunting task, especially if your business experienced widespread layoffs and mass hiring during the pandemic. To get started, first, determine which of your employees were hired remotely after March 20, 2020, benefited from the temporary flexibility for I-9 supporting document inspection, and are still employed at your company. Then, determine the best process for reinspecting those employment documents in-person.

Companies that have adopted Form I-9 online management services have an advantage at this step. Identifying documents completed using temporary remote flexibilities may be as simple as filtering your list of I-9s for documents flagged as completed using the remote workflow. Better yet, perhaps your I-9 online management provider has proactively provided you with a list to help you get started with your physical inspections. If you aren’t sure how to identify Form I-9s completed using remote inspection in your online system, reach out to your provider for assistance.

Step 2 | Complete in-person physical inspection of your Form I-9s completed using temporary remote inspection.

The termination of the temporary remote inspection flexibilities means that the supporting documents for each Form I-9 completed using these temporary processes must now be physically inspected in-person and documented by an employer representative. To accomplish this, employers are using the following options:

• Documenting the physical inspection in the Additional Information section of the original Form I-9 using USCIS recommendations.
• Completing an entirely new Form I-9 that reflects the original hire date and incorporates in-person physical inspection of the supporting documents. This document is then attached to the original Form I-9 that was completed with temporary flexibilities for tracking.
• Completing a new Section 2 with the original hire date and documenting physical inspection accordingly. The new Section 2 is then attached to the original Form I-9 for tracking.

According to DHS, all Form I-9 supporting documents must be physically inspected by Thursday, August 30, 2023. Please note that for companies that use E-Verify services, No E-Verify action should be taken in connection with the physical inspection of Form I-9 documents.

It is important to know that in-person physical inspection of Form I-9 supporting documents is required by DHS whether your company plans to return to the office or not. DHS does permit use of an authorized representative to fill out the employer portion of the Form I-9 Section 2. If you have remote employees, an authorized representative could be an important option to help you accomplish in-person physical inspection.

Keep in mind that in the event of an U.S. Immigration and Customs Enforcement (ICE) audit, the employer is responsible for proper completion of the Form I-9. Reviewing the accuracy of your completed forms is important, whether an authorized representative or an internal resource is used.

If you use a Form I-9 online management system, you likely have multiple options to help with your physical inspections. Sterling I-9 users can choose from the following functions to complete their physical inspections:

• Inspect Docs | This option is available to internal users of the Sterling I-9 dashboard and simply auto-populates the Additional Information section of the existing Form I-9.
• Edit Section 2 | This workflow provides access to Company-Selected and some Employee-Selected verifiers to allow manual input of documentation in the Additional Information section of the existing Form I-9.
• COVID-Inspect I-9 | This new enhancement, set to release in July 2023, will allow individual and bulk orders of new Form I-9s for in-person physical inspection of supporting documents. The new Form I-9s will be pre-populated using the existing Form I-9 information and allow for physical inspection of the documents in Section 2. The related Form I-9s will be connected for tracking purposes. The COVID-Inspect I-9 tool can be used with any verifier option.

The Edit Section 2 and COVID-Inspect I-9 physical inspection options are supported by reminder emails to help move inspection tasks toward completion in a timeframe you establish.

Another advantage of using a Form I-9 online management tool is the availability of multiple verifier pathways, all carefully supported with step-by-step guidance and field validations to help simplify proper Form I-9 completion. While your online system may vary, Sterling I-9 offers the flexibility of five verifier pathways to complete your specific Section 2 physical inspection requirements:

• Sterling I-9 Dashboard Users | If your employees are reporting to a work location where your Sterling I-9 users are performing physical inspection of their Form I-9 Section 2 documents, then your team can simply complete in-person physical inspection via their Sterling I-9 dashboard.
• Company-Selected Verifier | If your employees are reporting to a company work location where a company representative will verify their Form I-9 Section 2 documents, then a task can be easily emailed to the verifier requesting that they complete the in-person physical inspection.
• Employee-Selected Verifier | Remote hires who do not work at a company work location can be prompted to provide first name, last name, and email for a self-selected authorized representative who will complete Section 2 on behalf of your company. A member of your team sends the task to the Employee-Selected verifier via email to complete in-person physical inspection of documents.
• Verifier Network | The Verifier Network simplifies remote hiring by offering known predictable locations for verification. The employee can self-select a location and appointment time to complete the in-person physical inspection task.
• Notary Network | The Notary Network provides flexible traveling verification options in all 50 states to facilitate remote hiring needs. The Notary serves as an authorized representative of your company, not a Notary, to complete the physical inspection of supporting documents in-person.

With multiple verifier options available, employers have resources to help address this and many other hiring concerns.

Step 3 | Develop a Plan for Future Remote Hires

According to recent studies, less than 5% of the US employees were remote workers before the Covid-19 pandemic. As of February 2023, over 27% of the US workforce is remote. Regardless of the increasing prevalence of remote workers, starting July 31, 2023, virtual inspection of Form I-9 supporting documents is no longer an option and all Form I-9 documents must now be physically inspected in-person.

If remote hiring is a continuing reality for your company, you need to establish a dependable process for completing Section 2 of the Form I-9. Companies that continue to manually manage their Form I-9s for remote employees will likely find arranging in-person physical inspection of documents to be a consistent challenge unless their employees are onboarded in-office during their first week.

Companies with Form I-9 online management tools are supported with robust options that can help them more seamlessly onboard their new hires, especially when their workforce is hybrid or fully remote. If your Form I-9 solution has an excellent selection of different verifier pathways, you should be able to establish processes to address all your hiring scenarios, simplifying and streamlining the Form I-9 completion for both you and your employees.

While the end of the temporary flexibilities presents many employers with a difficult challenge, the situation has also provided them with an opportunity to take a step back and re-evaluate their processes, so that they can make changes that better support both their cultural and business objectives.

For more information on DHS Temporary Policies Related to Covid-19, please visit the U.S. Citizenship and Immigration Services (USCIS) website.

Sterling offers end-to-end employment background identity, screening, and onboarding services to help companies protect their employees, customers, and community. To learn more about our Form I-9 service, visit here.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.