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 |