The COVID-19 temporary flexibilities for Form I–9, Employment Eligibility Verification, will end on July 31, 2023. U. S. Immigration and Customs Enforcement (ICE) recently announced that employers must complete in-person physical document inspections for employees whose documents were inspected remotely during the temporary flexibilities by August 30, 2023.” This will affect most employers who have hired employees after March 2020, but did not verify their work authorization documents in person. DHS published a Notice of Proposed Rulemaking for alternative procedures allowing remote document examination for Form I–9 last year. DHS anticipates publishing a Final Rule in the Federal Register that will implement this proposal.
In follow-on guidance, ICE noted that employers could continue to implement the flexibilities until affected employees undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.
Are the employees in question returning to work at the office on a consistent, regular basis? If so, you will need to update their I-9s in person.
If any employees will continue to operate remotely, but they are too far away from your office to come in person for the verification, you can use an authorized representative on the employers’ behalf.
Some states, like California, have specific rules about who can act as an “authorized representative.” Therefore, you should check the rules in all states where you have remote employees, if any.
Employers may designate an authorized representative to fill out Forms I-9 on behalf of their company, including personnel officers, foremen, licensed attorneys, agents, or notary public*. The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. However, if an authorized representative fills out Form I-9 on behalf of the employer, the employer is still liable for any violations in connection with the form or the verification process.
*Under California law, the only individuals who can assist clients with completing immigration forms (such as the Form I-9) are licensed attorneys, individuals authorized under federal law to provide immigration services, and individuals qualified and bonded as an immigration consultant under California law (Business & Professions Code, Sections 22440, 22441). A notary public who is not qualified and bonded as an immigration consultant is prohibited from completing immigration forms for his or her clients (Government Code, Section 8223 (c)). Companies that need to remotely hire an employee in California can designate an authorized representative to meet with the employee, inspect the documents provided by the employee, and complete Section 2 of the Form I-9 on behalf of the employer.
If you are contracting with a notary public for this person, the notary must also be an immigration consultant. If not, the notary public is prohibited from completing the Form I-9 on the company’s behalf.
The designated representative must understand what he or she needs to do to complete the Form I-9. The employer will still be liable for any violations committed by the representative when completing the Form I-9.
For information on how to update your policies moving forward, and how to update the I-9 form for remote employees hired between March 2020 and July 31, 2023, please schedule a consultation with our employment attorneys, or call (949) 798-6298.
To learn more about ensuring your business is compliant with state and local laws, schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (949) 798-6298; or fill out a Contact Request Form.
As outside counsel for growing and international companies with a presence in California, The Grady Firm attorneys provide the following services;
Assistance with interpreting COVID-19 legislation as it affects your business;
Counsel employers on staff changes and draft Notices of Reduced Hours, Furloughs, or Layoffs;
Draft Severance Agreements;
Act as I-9 agent and I-9 audit preparation or defense;
Employee v. independent contractor classification analysis;
Assistance with converting independent contractors to employees;
On-site, classroom-style Sexual Harassment training for employees and supervisors;
“Experiential” supervisor training in which managerial employees practice processing a harassment complaint and commencing an investigation in pairs with other trainees.
Draft and review Employee Handbooks, arbitration agreements, and Anti-Harassment policies;
Employee personnel file audits;
Litigation/labor claim defense.
The firm’s attorneys are licensed to practice employment law in California.
This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.
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