On Thursday, May 4, 2023, Immigration and Customs Enforcement (ICE), the investigatory arm of the Department of Homeland Security, announced that there would be no further extensions to the COVID-19 Flexibilities after the current extension expires on July 31, 2023.

ICE permitted employers to complete Form I-9 in a "virtual" manner if certain conditions were met. ICE further stated that employers must physically inspect the employee's documents within three days of them returning to the office full time (or no longer meeting the criteria for the extension) or the cessation of the Flexibilities, whichever was earlier.

USCIS has issued suggestions on how employers can document this in-person inspection, available here. Notably, these suggestions are phrased in the permissive "may" instead of the mandatory "shall" and leave employers with room to implement solutions outside of those suggested, so long as they do not run afoul of the ICE/USCIS or DOJ-IER guidelines.

Importantly for employers, ICE is allowing for a 30 day grace period after the cessation of the Flexibilities to conduct the in-person physical inspection. That being said, employers should not wait until the last minute to begin identifying and conducting in-person physical inspections of the documents. Due to document production delays and hybrid work schedules, employers should begin strategizing and implementing a plan to conduct these inspections now.

In the coming weeks, your Account Manager will be reaching out with a list of potentially impacted individuals who will need an in-person physical inspection.

If you have any questions about the impending cessation for COVID-19 Form I-9 flexibilities, please contact your sales executive, account manager, or our customer service team.

Source: U.S. Immigration and Customs Enforcement

Posted: May 8, 2023

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