In the face of the COVID-19 pandemic, in March 2020, the Department of Homeland Security (“DHS”)/US
Immigration and Customs Enforcement (“ICE”) suspended the physical presence requirement of the Form I-
9 verification process for certain employers. These flexibilities apply to employees until they undertake
non-remote employment on “a regular, consistent, or predictable basis,” or until the extension of the
flexibilities is terminated, whichever is earlier. DHS issued a series of extensions of the Form I-9 flexibilities
over the past three years.

On May 5, 2023, ICE announced that the temporary flexibilities will end on July 31, 2023, and issued
updated guidance in the form of questions and answers (the “Q&As”). By August 30, 2023, that is 30 days
after the July 31 end date, employers are required to physically examine documents for employees hired on
or after March 20, 2020, whose I-9 documents were inspected remotely. If an employee separates from
employment before this physical inspection can be completed, employers are directed to note this in the
“Additional Information” box on Form I-9, along with the employee’s separation date. The Q&As remind
employers that they cannot retain employees who the employer knows are not authorized to work in the
United States or who do not fulfill the Form I-9 documentation requirements, including presenting
documentation for in-person physical examination.

DHS notes in the Q&As that if an employee’s immigration status has changed between the time of remote
inspection and the in-person inspection, employers have two options: (1) they may complete Section 2
(Employer Review and Attestation) on a new Form I-9 and attach it to the Form I-9 previously used for the
remote inspection (and note in the Additional Information field that the employee’s immigration status has
changed); or (2) they may provide the document title, document number, issuing authority, and expiration
date (if any) of the new document and note that the employee changed their immigration status in the
Additional Information field of the original Form I-9. The Q&As note that DHS is encouraging employers, as
a best practice, to elect option 1. Employers have the option to use an authorized representative to
complete the in-person inspection and complete Form I-9 on their organization’s behalf. The Q&As direct
employers to examples of Form I-9s
for documenting the subsequent physical, in-person inspection of
documents previously reviewed remotely.

ICE plans to publish a final rule later this year that would clarify when alternatives to in-person inspection of
identity and employment authorization documents in the Form I-9 process are permissible. A proposed
was published in August 2022.

While affected employers have until August 30, 2023, to update Form I-9s for employees who have yet to
complete an in-person, physical inspection of Form I-9 documents, employers should conduct internal
audits and review their Form I-9 documentation now to determine which employees will need to submit for
physical inspection. Garcia & Gurney can help any employer navigate this and especially those employers
who currently have resolved to keep a remote workforce and have employees in other states.

Garcia & Gurney, ALC will closely monitor any developments on this issue and update you promptly.  If you
have any questions or would like assistance in fulfilling the Form I-9 documentation requirements, feel free
to contact us.