The United States Immigration and Customs Enforcement’s temporary policy allowing employers to inspect Form I-9 documents virtually will end on April 30, 2022. The policy was first issued in March 2020 due to the COVID-19 pandemic and it has been extended 12 times.
Starting May 1, 2022, the eligibility documents must be reviewed in person. This can be accomplished for remote employees by retaining an authorized I-9 representative to review the documents on behalf of your company. Employers may designate an authorized representative to fill out Forms I-9 on behalf of their company, including personnel officers, foremen, agents or notary public.
The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. If an authorized representative fills out Form I-9 on behalf on the employer, the employer is still liable for any violations in connection with the form or the verification process.
When completing Form I-9, the employer or authorized representative must physically examine, with the employee being physically present, each document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. Reviewing or examining documents via webcam is not permissible.
If the authorized representative refuses to complete Form I-9 (including providing a signature) another authorized representative may be selected. If the employer hires a notary public, the notary public is acting as an authorized representative of the employer, not as a notary. The notary public must perform the same required actions as an authorized representative. When acting as an authorized representative, the notary public should not provide a notary seal on Form I-9.
There are companies that can be hired as “authorized representatives” to review the forms, such as Equifax. Alternatively, the employee can use a notary public.
In preparation for in-person document inspection, employers should have maintained a list of all employees who were verified virtually, when they will be returning to work and the deadline for their in-person verification. In addition, employers should decide who will conduct the in-person verifications, how and when they will be reaching out to the affected employees, and how to update the forms after the in-person review.
On October 26, 2022, the U.S. Department of Homeland Security (DHS) published a request for information seeking comments from employers on their use of remote verification options, the kinds of technology used and any technical difficulties conducting I-9 inspections during the last 19 months of the COVID-19 pandemic. A proposed regulation is expected to be published in the summer of 2022 setting forth rules for permanent remote document inspection like those temporarily in place.
We will continue to closely monitor and report on further developments in this area. Also note that the Equal Employment Opportunity Commission (EEOC) has announced that it will open the 2021 EEO-1 Component 1 Report on April 12, 2022 with a due date of May 17, 2022. The EEOC’s announcement indicates that both dates are “tentative” and EEO-1 opening and closing dates have been subject to modification by EEOC in recent years. Should you have any questions, please contact ALG.