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Remote I-9's Ending - What Staffing Firms Need to Know

For the last 40 months or so, staffing firms have had the luxury of completing I-9 forms without the usual "in-person" examination of the employee's documentation demonstrating authorization to work in the US. With the national COVID-19 emergency behind us, that is ending. Last October, U.S. Immigration and Customs Enforcement (ICE) announced that the flexibility would end on July 31, 2023, and in-person examinations must resume.  

Retroactive document examinations required

There is more than just the obligation to start performing in-person examinations again. Employers are also required to retroactively conduct in-person follow-up examinations of the documents of their remotely examined employees. On May 4, 2023, ICE announced that employers would have until August 30, 2023, to complete this task. For staffing firms with possibly hundreds of remote workers, this can represent an enormous undertaking. As explained by Fisher Phillips' David Jones, the process varies depending on whether the person doing the follow-up exam was the same person who did the original remote examinations. In either case, additional I-9 documentation will need to be prepared. In many, if not most, circumstances, it will be necessary to have an "authorized representative" conduct the follow-up examination of a remote worker. The employer would then update the documentation in the file.

Existing vs. terminated employees

The hard part will be re-examining the documents of existing employees who were remotely verified. But do not forget to update the I-9's of employees who have been terminated, including your temporary workers. Here is the guidance issued by ICE for handling the I-9's of terminated employees:

What if we complete remote inspection of an employee’s documents but the employee separates from employment with our company prior to the completion of the in-person document inspection?
If the employee separates before the physical inspection can be completed, include an explanation in the Additional Information box on Form I-9 and the date of the employee’s separation.

The explanation can simply be "Terminated [date]" with the initials of the person updating the form.

Mitigating I-9 audit risk

It is not unusual, even common, for an I-9 audit to reveal numerous errors in completing the form. Fines for I-9 paperwork violations can range from$272 to $2,701 per noncompliant I-9. Only trained personnel should fill out the employer section of I-9's. Another method of reducing audit risk is the ability to lawfully purge the I-9's of terminated employees three years from the date of hire or one year after the termination date, whichever is later (this will always be at least three years from the date of hire). Here is how this translates:

If they worked for less than two years, you must retain their form for three years after the date you entered in the ‘First Day of Employment’ field.
If they worked for more than two years, retain the form for one year after the termination date.

Future considerations

Although ICE has proposed regulations that may allow remote document reviews to resume in the future in some circumstances, there is no indication that the agency will relent on the requirement to complete the retroactive follow-up document examinations by August 30. Given the significant financial exposure inherent in an I-9 audit, it is recommended that all employers begin immediately implementing plans to resume in-person document review by August 1 and updating remote document reviews by August 30, 2023. It is also highly advisable to seek the advice of knowledgeable counsel in connection with this process.