Andrea Hellrigel, Suffolk Law Student and Summer Associate

The option for remote work has become a new normal for many companies. With employees working throughout the country, sometimes thousands of miles away from a company’s human resources department, employers face new challenges complying with in-person requirements during the onboarding process. This is especially so, since the Immigration and Customs Enforcement (ICE) recently announced that as of July 31, 2023, temporary COVID-19 accommodations for Form I-9, which had excused employers from conducting inspections of I-9 documents in person, will expire.

The Immigration Reform and Control Act (IRCA), enacted on November 6, 1986, requires all employers to verify the identity and employment authorization of individuals hired for employment in the U.S., which is satisfied through completion of Form I-9. Section 2 of Form I-9 requires employees to present to their employer unexpired original documentation from the list of acceptable documents.  Generally, these documents must be presented in-person to permit the employer to physically inspect the documents.

During COVID-19, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) had allowed flexibility with respect to in-person inspection of Form I-9 documents. Eligible employers were allowed to review and verify documents remotely via video, fax, or email.

Since ICE has announced that as of July 31, 2023 the temporary flexibilities will expire, employers must resume in-person document inspections for all new employees. ICE also announced that by August 30, 2023, employers must complete in-person review of documents for all employees who previously submitted their documents virtually, which may be a substantial undertaking in some cases. ICE has updated its “Frequently Asked Questions Related to COVID-19” website page to address the end to the temporary flexibilities ICE had permitted during the pandemic. The FAQs is available here.

In-person inspection of documents poses a challenge to employers as remote work has become more prevalent. However, there are solutions to this challenge. One option for an employer is to use an authorized representative to assist with the physical presence requirement for completion of Section 2 of Form I-9. 

In addition, DHS has proposed a more permanent solution that would allow remote document examination. DHS anticipates that this proposed rule will be published as a Final Rule in the Federal Register later this year. However, until then, employers must resume compliance with in-person inspection requirements of employee I-9 documents, even if the employee is remote.