COVID-19 forced many employers to handle their hiring processes remotely. During the pandemic, the Department of Homeland Security (“DHS”) relaxed some of its otherwise-strict requirements regarding the I-9 Form. Whereas employers (or their authorized representatives) were previously required to inspect employees’ identity and work authorization documents in person before filling out the employer’s section of the employee’s I-9 Form, the DHS implemented a flexibility policy that temporarily exempted employers from their in-person inspection obligations as to fully remote employees and permitted remote document inspection (e.g., by video or email). Under this flexibility policy, employers who conducted remote document inspections were still required to conduct in-person inspections of an employee’s documents when an employee begins physically reporting to work or when the flexibility policy ends. The DHS has announced that (i) as of July 31, 2023, its flexibility policy will terminate and employers’ in-person inspection obligations will apply again; and (ii) by August 30, 2023, any employees whose documents were inspected remotely under the flexibility policy must present their identity and work authorization documents for an in-person inspection by their employers (or their employer’s authorized representatives). The DHS has indicated that it anticipates issuing a rule that may put alternative document inspection requirements into place in the future, but until such a rule is issued, employers should plan on conducting (or having their authorized representatives conduct) in-person inspections of employees’ identity and work authorization documents.
