May 11, 2023

DHS Extends COVID Form I-9 Flexibilities Compliance Deadline

The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have provided employers with an additional 30-days to reach compliance with Form I-9 requirements after COVID-19 flexibilities sunset on July 31, 2023 

COVID-19 flexibilities were first announced in March 2020 and subsequently extended throughout the COVID-19 pandemic. Employers still relying on those temporary flexibilities should begin to plan ahead to make sure all required physical inspection of identity and employment eligibility documents are completed by Aug. 30, 2023. 

In March 2020, ICE announced that it would defer the requirement that employers review employees’ identity and employment authorization documents in the employees’ physical presence, instead allowing that to occur remotely, with the expectation that physical inspection would occur within three business days after normal operations resumed.  

Updated notifications from ICE noted that employers could continue to implement the flexibilities until affected employees undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. In October 2022, DHS and ICE announced that the flexibilities would be extended until July 31, 2023 

The newly offered 30-day extension allows additional time for employers to perform all required physical examinations of identity and employment eligibility documents for those individuals hired on or after March 20, 2020, and who have only received a virtual or remote examination under the flexibilities. 


Although DHS is currently reviewing public comments and plans to issue a final rule later this year in connection with its August 18, 2022 proposed rule to allow alternative procedures for the examination of identity and employment eligibility documents, employers should still plan on bringing their organizations into compliance by the August 30, 2023 deadline.  

Below are a few steps employers can take now to begin compliance efforts: 

  1. Initiate an internal audit of all Form I-9 documents reviewed in accordance with flexibility guidelines. Documents complying with flexibility guidelines should have “COVID-19” as the reason for the physical examination delay in the Section 2 Additional Information. 
  1. Once all flexibility-related Form I-9’s are located and the employees’ documents physically examined, the employer should add “documents physically examined” with the date of examination to the Section 2 Additional Information field on the Form I-9, or in Section 3, as appropriate. 

If it were only that easy…. 

Understanding that nothing is quite that easy, it is likely that any number of workplace-related circumstances have changed since the flexibility guidelines were initiated (e.g., the original document reviewer is no longer with the company; the document(s) the employee provided are now expired or lost or otherwise unavailable). Employers should consult USCIS Questions and Answer Related to COVID-19 guidelines for assistance in dealing with various COVID-flexibilities related corrections.