On May 5, 2023, Immigration and Customs Enforcement announced the sunset of the pandemic provision allowing employers to review I-9 employment verification documents remotely. On July 31, 2023, employers must return to the pre-pandemic practice of physically inspecting newly hired employees' I-9 documents. Additionally, employers have thirty (30) days to physically inspect all previously remotely verified employee’s I-9 documents.

The Immigration Reform and Control Act of 1986 requires employers to verify the employment eligibility of all newly hired employees using the I-9 form. This Act requires employers to physically inspect the documents employees produce to establish employment authorization within three days of hire and certify that the documents appear to be genuine. In response to the COVID-19 pandemic and the rise of remote work, on March 20, 2020, Immigration and Customs Enforcement suspended the physical inspection requirement and permitted employers to remotely inspect employment eligibility documents for newly hired employees.  

As previously hinted at in this blog, this pandemic provision is now sunsetting and ICE has announced procedures for transitioning to physical inspection of I-9 documents. As of July 31, 2023, employers will no longer be permitted to remotely verify newly hired employees’ employment eligibility documents. Employers must return to the pre-pandemic practice of physically inspecting employment eligibility documents within three days of hire. Additionally, employers must go back and physically verify the documents of all employees who were previously verified electronically. ICE has given employers thirty (30) days to physically inspect the documents of all workers hired since March of 2020 whose documents were remotely verified.  

Employers should cull their records now for remotely verified I-9 forms, contact the affected employees, and request that they produce 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 gives DHS 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.