ICE Announces the End of Remote Inspection for I-9 Forms and Requires Physical Inspection of Remotely Inspected I-9 Forms

Since March of 2020, U.S. Immigration and Customs Enforcement (ICE) has allowed remote inspection of identification and work authorization documents related to I-9 Forms for employees working exclusively in remote settings due to COVID-19–related precautions. Specifically, employers could remotely inspect I-9 documents via video link, fax, or email. On May 4, 2023, ICE announced that these temporary flexibilities would be coming to an end and that starting July 31, 2023, employers are once again required to inspect all I-9 documentation in person. Additionally, by August 30, 2023, employers must complete in-person physical document inspections for employees whose I-9 documents were inspected remotely. This means employers are required to inspect in-person the relevant I-9 documents for any employee whose documents were inspected remotely while the temporary flexibilities were in place. This re-inspection requirement applies to all employers, even those who started operating remotely during COVID-19 and are not planning to return to in-person work.

The re-inspection requirements apply only to employees whose I-9 documents were inspected remotely and who are still working for the employer. Guidance from USCIS states that if an employee was separated from employment before a physical inspection of documents could be completed, employers must note that in the “Additional Information” section on the Form I-9 with the date of the employee’s separation.

Guidance from USCIS also includes recommended notation methods for re-inspection that should be followed depending on the circumstance. For example, if the person who performed the remote inspection also performs the physical inspection, they should indicate the date they physically examined the documents and then add their initials in the “Additional Information” field. If the person who performed the remote inspection cannot also perform the physical inspection, the person who performs the physical inspection should indicate the date they physically examined the documents as well as their full name and title in the “Additional Information” field. The USCIS provides some example forms that show how these notations should be made. Employers may want to provide these examples and instructions to whoever will be conducting these re-inspections in-person.

There may be more permanent alternatives to in-person inspection of I-9 documents on the horizon. The Department of Homeland Security (DHS) is working to publish a regulation that would authorize the agency to allow alternatives to the in-person inspection of identity and employment authorization documents in the Form I-9 process. Indeed, a proposed rule on this issue was published by DHS in August of 2022 and the public comment period closed on October 17, 2022. According to ICE, DHS plans to issue a final rule this year.

Employers should determine the population of employees whose forms require re-inspection and make plans to meet with these employees to ensure their I-9 documents are re-inspected in-person before August 30, 2023.

If you have any questions about your I-9 process or the end of the I-9 Form flexibilities, please contact Caroline F. Secola at csecola@fglawllc.com, or any attorney at the firm.

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