The end date for the COVID-related I-9 verification flexibility is scheduled for July 31, 2023. While the U.S. Immigrations and Customs Enforcement has extended this deadline a few times in the past, ICE has now announced that the deadline is firm, and Companies will have until August 30, 2023, to do in-person verifications of employment documents that were only inspected virtually.
U.S. Citizenship and Immigration Services (USCIS) has provided a very useful FAQ as well as instructions on how to notate the Form I-9 when inspected in-person after originally being inspected virtually.
What are my next steps?
Companies should gather a list of those employees whose documents were inspected virtually, and determine who will serve as your authorized representative to inspect the documents in-person, especially if you have varied locations around the country.
Once you know whose documents need to be inspected and their work location, you may be able to save both time and money on travel with a bit of strategy. You can have different authorized representatives for different regions. This job can be assigned to anyone you’d trust with a sensitive task. Given that employers are liable for any violations in connection with the form or the verification process, you should choose someone who can pay attention to detail and train them on exactly how you want the verification done. You can also outsource the role of an authorized representative to a law firm, notary, or someone else who can legally offer this service.
Finally, consider having someone from your HR team remotely oversee the in-person inspection (via phone call, video, or messaging app) to ensure a consistent process is followed as well as to be available to address any questions or concerns from the employee or person acting as the authorized representative.
If the Company does not participate in E-Verify, there is no requirement to make copies of the identification documents used for I-9 purposes. If it is Company policy to do so, please do so for all employees.
Also, I-9s must always be stored and maintained separately from all other personnel files. This can be a separate binder or file that is accessible only to a few individuals and stored alphabetically for ease of audit in the future. Supervisors and Managers should not have regular access to I-9 forms and documents due to the nature of employees’ protected classes.
Your I-9s must be retained either one year after the date of termination or three years after the date of hire, whichever is later. This does not mean to destroy I-9s three years after hire if the employee is still with the Company after three years – but rather one year after that employee terminates. When purging your files of I-9s in the required timeframe, it’s best to use a secure document destruction protocol to lessen the risk of unauthorized exposure. Cross-cut shredders, or other recommended modes of destruction, work in this situation.
If electronically stored, these documents should be purged within the same timeframe, using a well-documented and secure data wipe process that prevents info from later being recovered or retrieved.
Purging unnecessary I-9s lets the Company remove the document that is no longer required to be retained and therefore decreases the exposure to liability in the future.
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