June 13, 2023

DHS Announces Final Form I-9 Flex Rule to be Published August 2023

Most HR professionals, small business owners and others know that the Form I-9 Flexibility rule will expire July 31, 2023. That is a rule that first took effect on March 20, 2020, permitting employers to remotely view verifying documents required to complete the Form I-9, rather than requiring in-person review.  At this time, employers have until August 30, 2023, to conduct an in-person review of Form I-9 documents they reviewed remotely since implementation of the rule.

Many employers who never had remote employees until the COVID-19 pandemic was declared are struggling with how to comply with the in-person review requirement. How do you conduct an in-person review of documents for an employee who works remotely in another state?  See the May 10th article for some suggestions.

What many may have forgotten is that on August 18, 2022, the Department of Homeland Security (DHS), published a proposed rule “to create a framework under which the Secretary of Homeland Security…could authorize
alternative options for document examination procedures with respect to
some or all employers.”

In its Spring Regulatory Agenda, DHS announced that it will publish its final rule in August. This may create some confusion for employers who work to comply with required in-person inspections effective August 1st, and then may be permitted some flexibility thereafter.  Perhaps, better late than never?

Stay tuned. The Society for Human Resource Management recently announced it will “submit a letter to the DHS urging that these I-9 flexibilities be extended until a final rule on remote verification is implemented.”