On Oct. 11, 2022, the U.S. Department of Homeland Security (DHS) published instructions for employers to continue using the Employment Eligibility Verification form (Form I-9) when hiring new employees until a new version of the form is published.
Oct. 21, 2019: Publication date of the most recent Form I-9.
March 11, 2020: National emergency declared for the coronavirus (COVID-19) outbreak.
March 19, 2020: DHS began issuing Form I-9 flexibilities.
Oct. 11, 2022: DHS notified employers that they may continue using the current form until a new form is published.
Oct. 31, 2022: Expiration date for the most current version of Form I-9.
July 31, 2023: Expiration date for Form I-9 flexibilities
Federal law requires employers to verify the identity and employment authorization of each individual they hire by completing and retaining Forms I-9. Employers must have a completed Form I-9 for every employee hired after Nov. 6, 1986.
DHS reviews and updates Form I-9 periodically. The most recent version of this form is set to expire on Oct. 31, 2022. Historically, DHS has allowed employers to continue using the most recent version of the form beyond its expiration date when a new form is not available by the time the most current version expires.
Industry experts anticipate DHS is delaying publishing an updated version of the form before the expiration date because of possible substantial changes to the form or the processes related to some of the form’s instructions.
In addition, given the recent extension of temporary remote verification procedures for Form I-9 supporting documents, some speculation has also risen on whether some of these temporary policies may become permanent.
Historically, employers may continue using the most recent version of the form when a new form is not available by the time the most current version expires.
DHS Extends Form I-9 Flexibilities Until July 31, 2023
On Oct. 11, 2022, the U.S. Department of Homeland Security (DHS) announced it is extending updated flexibilities for Form I-9 due to the continued safety precautions related to COVID-19 until July 31, 2023.
Federal law requires every employer that recruits, refers for a fee or hires an individual for employment in the United States to complete an Employment Eligibility Verification form (Form I-9). To comply with Form I-9 requirements, employers must, within the first three days of employment:
Complete and sign Section 2 of Form I-9 for each new hire; and
Physically examine the documents each employee presents to prove his or her employment eligibility (documents must come from the form’s list of acceptable documents).
Form I-9 flexibilities allow employers to review identification documents remotely and accept some expired documents when the expiration was caused by COVID-19 disruptions.
Form I-9 Flexibilities
Since March 19, 2020, DHS has adopted various temporary policies to provide employers flexibility in their employment eligibility compliance efforts. DHS has reviewed, renewed and updated these Form I-9 “flexibilities” to allow employers to:
Review Form I-9 identification documents remotely; and
Accept some expired identification documents when the expiration was caused by COVID-19 disruptions.
Employers should review the original DHS guidance on remote document verification for details. Employers can access additional information about updated flexibilities on the DHS U.S. Citizenship and Immigration Services Temporary Policies Related to COVID-19 webpage.
Impact on Employers
Employers can rely on this agency notification as evidence that I-9 compliance will require using the most current version of Form I-9 until a new form is published. Once the new form is published, employers will need to update their hiring processes to ensure they are using the newest version of the form and following any updated instructions.
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This Legal Update is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.