The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) recently announced that employers will have 30 days to reach compliance with Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023. These flexibilities were first announced in March 2020 and subsequently extended throughout the COVID-19 pandemic. DHS encourages employers who have been using those temporary flexibilities to plan ahead to ensure that all required physical inspections of identity and employment eligibility documents are completed by August 30, 2023. It is important to note that this deadline applies to individuals hired on or after March 20, 2020, who have only received a virtual or remote examination under the flexibilities.
Under the flexibilities, employers with employees taking physical proximity precautions due to the COVID-19 pandemic were allowed to temporarily defer physical examination of employees’ identity and employment authorization documents. Instead, employers could examine the employees’ documents remotely (e.g., over video link, fax, or email) and enter “COVID-19” as the reason for the physical examination delay in the Section 2 Additional Information field when physical examination took place in the future.
It is essential for employers to be aware that failure to comply with Form I-9 requirements can result in significant fines and legal liabilities. Fines are based on the percentage of overall errors and violations, with the maximum fine set at 50%. For instance, a 50% or higher error rate is roughly $1800 per record (per I-9 Form), while a 30-39% error rate is roughly $1100 per record.
From our experience, most companies are great at initial onboarding, but fail to properly maintain and/or re-verify, resulting in errors and timeliness violations. These violations can never be fixed and can only be mitigated through a showing of good faith. Therefore, it is imperative for employers to take proactive steps to ensure compliance with Form I-9 requirements and avoid potential legal and financial consequences. It is highly encouraged that you plan ahead and ensure that all required physical inspections of identity and employment eligibility documents are completed by August 30, 2023. Please do not hesitate to reach out to our firm with any questions or concerns about this matter.