ICE is Terminating Form I-9 COVID Flexibilities – What Employers Need to Know

US Immigration and Customs Enforcement (ICE) is giving employers until August 30, 2023, to meet Form I-9 rules after the COVID-19 flexibilities end on July 31, 2023. All required document checks should be done by then.

In this blog, we discuss all the basics you need to know to comply with this requirement. It’s best to consult an immigration lawyer in NYC for specific questions or if you encounter complex situations during the compliance process.

A brief backgrounder on Form I-9 COVID-19 flexibilities

Every US employer must complete Form I-9 for each foreign employee they hire to work in the US. This form verifies an employee’s identity and eligibility to work in the country.

Employees must present acceptable documents for identity and work authorization within 72 hours of their employment start date, which employers must then physically inspect for authenticity.

  • March 2020 updates – Due to the COVID-19 pandemic, Immigration and Customs Enforcement (ICE) modified the requirement for physical document inspection. They allowed employers to verify documents remotely (like via email or video) to comply with social distancing.

ICE specified that employees who underwent remote verification needed to present their documents for in-person review within three business days once normal operations resumed or the pandemic-related flexibilities expired.

  • April 2021 updates – The COVID-19 flexibility was further updated in April 2021. It stated that employees hired after April 1, 2021, needed to undergo a physical document inspection if they regularly reported to a physical work location.

For instance, let’s say you hired a remote employee in September 2020. This employee started working fully remotely but then came into the office every Wednesday and Friday from May 2021 onwards.

To align with the guidance given in April 2021, you should have asked the employee to show their physical I-9 documents within 72 hours of their first in-office day. This is because they began working at the physical location regularly and on a predictable schedule.

Flexibility expiration in July 2023

All COVID-19 flexibilities related to Form I-9 will end on July 31, 2023. ICE is giving employers until August 30, 2023, to physically inspect the I-9 documents of all employees hired from March 20, 2020, onwards.

Inspection by authorized representatives

The physical inspection of I-9 documents can be carried out by a designated representative who acts as the employer’s agent for this task. This representative could be anyone, but they should be at least 18 years old.

Note that any mistakes the representative makes are the employer’s responsibility, so it’s crucial to communicate with them and review the I-9 form carefully to ensure compliance.

If this representative is doing the physical inspection after a remote review, they should follow the provided protocols to update the I-9 form.

Annotation requirements

ICE has clarified that Form I-9 for remotely-verified employees should have specific annotations. The “Additional Information” section in Section 2 should note when the remote verification was completed.

Upon physical document inspection, the following note should be added:


Documents physically examined on [date] by [initials].

If the employee doing the physical inspection is different from the one who conducted the remote inspection, they should provide their full name and job title instead of just initials.

USCIS offers additional form examples related to temporary COVID-19 policies on their website.

Practical steps

Fortunately, ICE released these guidelines early in May, giving employers plenty of time to get ready before the compliance deadline in August.

To facilitate this process, here are some suggestions:

  • Begin arranging for and executing the physical inspection process immediately.
  • Make a list of employees hired since March 20, 2020, who need physical document inspection.
  • If you’ve followed previous I-9 guidance, you should have already inspected documents for employees who have returned to regular work or those regularly reporting to a company location. If their documents haven’t been verified yet, prioritize their inspection.
  • Maintain clear and frequent communication about deadlines with employees who need to present physical documents.
  • If you’re the employer contact responsible for physical I-9 document inspection and form annotation, consider blocking out regular time on your schedule to plan, communicate, and implement your strategies for maintaining compliance.

Talk to an immigration lawyer in NYC.

If you encounter any compliance issues with Form I-9, don’t hesitate to seek assistance from an immigration lawyer in NYC.

Berd & Klauss, PLLC, is a well-established and highly respected immigration law firm with extensive experience helping employers and employees navigate immigration processes in the US. Call 212-461-7252 to schedule an appointment.