ICE announces 30-day grace period for compliance after Form I-9 flexible measures end

U.S. Immigration and Customs Enforcement announced Thursday that it would give employers 30 days to reach compliance with Form I-9 document inspection requirements once COVID-related I-9 flexibilities come to an end on July 31, 2023.

Key Points:

• In March 2020, ICE introduced Form I-9 flexible measures that allow employers operating remotely because of COVID-19 to verify employee employment eligibility documents virtually, e.g., by fax, email or video.
• These measures were extended several times, most recently in October 2022. ICE’s announcement Thursday confirms that these measures will remain in place for eligible employers through July 31, even after the COVID-19 public health emergency ends on May 11.
• Under the guidance, employers that follow virtual procedures must comply with certain guidelines when “normal operations” resume. Initially, this included conducting physical inspections of documents that were viewed remotely within three business days; ICE has now extended that period to 30 days from the date the temporary measures expire, i.e., until Aug. 30, 2023.

Additional Information: The Department of Homeland Security continues to work on a rule that would give ICE authority to allow remote inspection of documents in some cases. The agency published a proposed rule in August 2022 and received more than 500 public comments, including one from BAL. DHS is currently reviewing the public comments and plans to issue a final rule later this year.

BAL Analysis: The 30-day grace period will give employers some additional time to review documents in person once the temporary flexibilities end; however, this is still a tight time frame, particularly given that some employers have been relying on the temporary policy for more than three years. BAL continues to encourage companies that have not yet started in-person reviews to start planning as soon as possible. BAL will continue to monitor the development of DHS’ new I-9 rule and will provide updates as information becomes available.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.