May 10, 2023

What’s Old is New Again: Form I-9 Flex Rule Expiring

On May 10th, the US CIS announced that the Flexibility Rule for remotely completing I-9 Forms would expire on July 31st. By August 30th, employers must (1) update via physical inspection all Form I-9’s they viewed remotely under the Flexibility Rule; and (2) continue physical inspection moving forward.

For employers that had remote employees prior to the declaration of COVID-19 as a public health emergency (PHE) and implementation of this rule, this is nothing new. It is just back to business as usual.

But for employers who never had remote employees until the COVID-19 PHE, many are feeling stressed and scrambling to figure out how this is done.

The question I have been asked most frequently since this announcement is how does an employer visually inspect one or more documents to verify an individual’s identity and authorization to work int he U.S. if the employee will work remotely and lives in another state or hundreds of miles away from any of our worksites?  Here is US CIS’ nearly identical question and their answer.

Q: If our employees are all working across the country rather than in my location, how can I complete the in-person inspection?  Are there alternative options?
A: Employers may choose to use an authorized representative to fill out their portion of the Form I-9 on their behalf.  Authorized representatives may also complete the in-person inspection as needed.

The next question I usually get is who and how in the world do we find such a person?  The following is not a testimonial or endorsement. I am just sharing some of the sources that I have heard employers use including: their payroll vendor, the financial institution with whom they have their corporate payroll account; and a variety of third-party service providers, such as Equifax.  The Society for Human Resource Management (SHRM) has a list of related vendors.

NOTE: While you have latitude in whom you choose to complete your portion of the Form I-9, choose your authorized representative with care. As US CIS reminds us, “The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. If an authorized representative completes 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.

Click here or on the link above for US CIS’ full Q & A for more information.