Videoconferencing made many employee onboarding tasks easier under COVID-related rules, including the inspection of passports, birth certificates and other I-9 documents. Those COVID-related rules are ending, however, and employers now have to conduct an in-person inspection of all I-9 documents that they examined virtually.
Federal law has long required employers to complete a Form I-9, Employment Eligibility Verification, for each employee within 3 business days of the employee’s first day of work. As part of this process, the employee’s passport, driver’s license or other I-9 documents had to be physically inspected in the employee’s presence, and the person who conducted the inspection had to complete the employer’s portion of the I-9 form. Due to health concerns during COVID, the U.S. Department of Homeland Security (DHS) announced temporary rules, under which employers could inspect I-9 documents virtually, by videoconference or otherwise, rather than in person.
When DHS issued these rules, it made it clear that it was simply deferring, and not eliminating, the employer’s obligation to conduct an in-person inspection of the I-9 documents. Although DHS extended the deferral period for an in-person inspection several times, it recently confirmed that the deferral period is ending on July 31, 2023, with a 30-day grace period until August 30, 2023.
In order to comply with the recent guidance from DHS, employers should therefore do all of the following no later than August 30: (1) identify all I-9 forms that were completed with a virtual inspection of the supporting documents; (2) arrange for an appropriate in-person inspection of the supporting documents; and (3) make the necessary notations on the I-9 forms to confirm the in-person inspection. If an employer fails to complete these steps, it could face consequences in the event of a DHS audit or other compliance proceeding.
If you have questions about this or other Labor and Employment issues, contact Brian Kelly or another member of the Frantz Ward Labor and Employment Practice Group.