ICE Reinstates Employers' Duty to Inspect I-9 Documents In Person

May 2023

Federal law has long required employers to verify a new employee’s identity and right to work in the United States using the Employment Eligibility Verification form, commonly known as Form I-9. Employees must complete, sign, and date section 1 of Form I-9, and employers must complete, sign, and date section 2 of the form no later than the employee’s third day of employment. Employers must complete section 3 of the form only when they re-hire an employee or re-verify an employee’s right to work after a previous authorization has expired. Employers should generally accept documents offered by a new employee to demonstrate his or her identity and right to work unless they have a specific and substantial reason to believe the documents are invalid.

During the COVID-19 pandemic, the government excused employers from conducting inspections of I-9 documents in person, as the law generally requires, due to public health concerns. Earlier this month, however, the Immigration and Customs Enforcement (ICE) announced that employers must resume in-person physical inspection of I-9 documents this summer.

As of July 31, 2023, employers may no longer examine the I-9 documents of new employees remotely or virtually. Instead, employers must resume in-person physical inspections of I-9 documents within three days of hire. Notably, employers must also physically examine the I-9 documents of employees who were hired since March of 2020 and did not submit their I-9 documents for in-person examination previously. ICE has established a deadline of August 30, 2023 for employers to complete the in-person review of documents for employees who have not submitted their documents in person previously.

ICE has published an FAQ page that addresses several common questions about I-9 protocols, and the FAQ is available here.

What Should Employers Do Now?

  • Require new employees to present I-9 documents in person. Employers should resume requiring new employees to present their I-9 documents in person. Although the requirement becomes effective on July 30, employers are wise to implement it immediately and avoid a need to re-verify employees later in the summer. If an employer does not have an employee available to examine I-9 documents for a new hire, the employer may designate a representative, such as a notary, to perform the task.
  • Complete in-person review of I-9 documents by August 30, 2023 for employees who previously submitted their documents virtually. Employers should identify all employees who have not yet submitted their I-9 documents for in-person review and conduct the necessary examinations by the deadline.

If you have questions regarding I-9 compliance or any other issue related to employment law, please contact one of our attorneys:

Shareholders Associates
Eric C. Bellafronto Richard M. Noack Shirley Jackson
Ernest M. Malaspina Daniel F. Pyne III Michael Manoukian
Cory J. Mickels
Annie Nguyen

Stay up to date on the latest news, alerts, events and legal insights: