Form I-9 Flexibilities Extended to 2023 and New I-9 Form Details

On October 11, the Department of Homeland Security (DHS), Immigrations and Customs Enforcement (ICE) announced an extension of the Form I-9 flexibilities surrounding remote inspection of required I-9 employee documents to July 31, 2023. The extension was previously set to expire Oct. 31, 2022.

The extension will continue to allow remote inspection of Form I-9 identity and employment authorization documents for employees hired after April 1, 2021. As such, any employees hired on or after April 1, 2021, who work remotely due to COVID-19 related precautions are temporarily exempt from the physical inspection requirements associated with the Form I-9 until the employee undertakes in-person employment on a regular, consistent or predictable basis, or the extension of the flexibilities related to the requirements is terminated – whichever is earlier.

Employers must still complete the remote inspection of the required identity and employment authorization documents within three business days of each employee’s hiring but may enter “COVID-19” as the reason for the physical inspection delay in Section 2 (Additional Information).

Additionally, starting Nov. 1, 2022, employers completing I-9 Forms for new hires and re-hires must use the newest version of the I-9 Form, which has multiple changes that include:

• Making Section 3 (Re-hires and Reverification) a standalone supplement that can be filled out only if needed
• Updating the list of Acceptable Documents for List C to include a link to a complete list of acceptable documents on the USCIS website. Previously, some List C documents were left unlisted, causing confusion for employers.
• Removing PDF restrictions to enable completion of Forms I-9 on more electronic devices and systems.

Penalties for failure to comply with I-9 requirements are costly. Monetary penalties for knowingly hiring and continuing to employ unauthorized workers range from $375 to $16,000 per violation, and penalties for paperwork violations range from $252 to $2,507 per I-9 Form. It is recommended that employers perform regular internal audits to correct any I-9 compliance issues prior to an audit from ICE.

For more information on I-9 Compliance and internal auditing, please contact Manuela M. Morais or the Stevens & Lee attorney with whom you regularly work.