(Source: CDF Labor Law by Richard M. Green – May 16, 2023)
On May 5, 2023, Immigration and Customs Enforcement (ICE) announced the sunset of the pandemic provision allowing employers to review I-9 employment verification documents remotely. Effective July 31, 2023, employers must return to the pre-pandemic practice of physically inspecting newly hired employees’ I-9 documents. Additionally, employers have thirty days to physically inspect all previously remotely verified employee’s I-9 documents.
Employers should review their records now for remotely verified I-9 forms, contact the affected employees, and request that they produce physical documents that establish employment eligibility in the United States. US Citizenship and Immigration Services has provided guidance for notating an I-9 form that was remotely verified and subsequently re-verified. Employers should seek the advice of counsel for employees that produce different documents on re-verification than at hire, employees who refuse to cooperate with the reinspection process, or for employees whose documents were remotely verified and are no longer employed by the employer.
While the pandemic may be over and ICE’s pandemic-related accommodations are ending, remote documentation verification may return to the workplace. On August 17, 2022, the Department of Homeland Security published a Notice of Proposed Rulemaking. If retained in the final rule, this notice will give the US Department of Homeland Security flexibility to issue program rules to permit the remote inspection of I-9 documents to some, or all, employers without the declaration of a national emergency.