Employers Have Until August 30, 2023, to Physically Verify Employment Authorization Documents of Employees Verified Under the Remote I-9 Flexibilities
Adrian Sanchez, Law Clerk
In March 2020, the Department of Homeland Security (DHS) announced flexibilities (“Flexibilities”) related to Form I-9 compliance.[1] These Flexibilities are scheduled to end on July 31, 2023.[2]
Considerations for Colorado Employers
Per Form I-9, every employer is required to obtain proof of an employee’s identity and authorization to legally work in the United States. Historically, this is done via physical inspection of certain documents in the presence of the employee, which establish either identity, employment authorization, or both. Typical identification and employment authorization documents include unexpired U.S. Passports, Social Security Account cards, driver’s licenses, voter registration cards, etc.
Under the Flexibilities, employers could defer the physical verification of employment authorization documents in the employee’s presence. The deferral was granted in response to the COVID-19 pandemic and the need for employees to work remotely for health and safety reasons. In lieu of physically verifying employment authorization documents, employers were permitted to remotely verify (e.g., over video, email, fax, etc.) these documents and retain copies of the documents for the purposes of completing Section 2 of Form I-9.
However, the Flexibilities are set to expire on July 31, 2023. After this date, employers will have thirty (30) days to physically verify original employment authorization documents for employees who were verified remotely under the Flexibilities.[3] As August 30, 2023 approaches, it is important for employers to remain vigilant and begin identifying impacted I-9 forms, physically verify the necessary documentation, and update/annotate their I-9 records to reflect compliance. A failure to do so could be costly in the event of a DHS audit, as noncompliance with I-9 requirements can result in civil fines or even criminal penalties for employers.[4] Civil fines range from $252.00 to $2,507.00 per Form I-9 violation.[5]
As always, Campbell Litigation is available to assist employers with these and other employment law-related matters in the ever-evolving legal landscape.
[1] https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance.
[2] https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3.
[3] https://www.ice.gov/news/releases/ice-updates-form-i-9-requirement-flexibility-grant-employers-more-time-comply.
[4] https://www.ice.gov/factsheets/i9-inspection.
[5] https://www.federalregister.gov/documents/2022/01/11/2022-00105/civil-monetary-penalty-adjustments-for-inflation.