By John Fay
On May 11, 2023, Equifax conducted a live
webinar on the recently announced termination of the COVID-19
Virtual I-9 flexibilities, which will officially end on July 31, 2023.
We also discussed the new August 30, 2023 deadline for conducting
physical in-person inspections when required by the rules.
During the presentation, we received many excellent
questions from attendees relating to this breaking news, with a
particular emphasis on how to conduct the physical inspections.
Below are some of the insights and suggestions for the most
frequently asked questions. I have included source materials where available.
Please note that the information provided is intended for
educational purposes only, and should not be construed as legal advice
nor as a substitute for legal counsel. If you have questions
concerning how I-9 and E-Verify rules apply to your specific
situation, please seek legal advice from an attorney who is familiar
with all of the facts of your situation.
U.S. Citizenship and Immigration Services (USCIS) and U.S.
Immigration and Customs Enforcement (ICE) will officially end their
so-called “Virtual I-9” flexibilities that were implemented at the
beginning of the pandemic. This relaxed Form I-9 rule enabled
qualifying employers to remotely inspect an employee’s identity and
work authorization documents (through video, email, fax, etc.)
followed by an in-person inspection when normal operations resume.
The government agencies also announced that employers will
have an additional 30 days beyond the July 31st sunset date (i.e.,
until August 30, 2023) to conduct any necessary physical in-person
inspections which have not already been completed. Review the official
As of August 1, 2023, employers with remote hires may no
longer review identity and work authorization documents in a virtual
fashion due to COVID-19 precautions. Employers with remote hires may
designate an authorized representative to meet in-person with the
employee and complete Section 2 (or Section 3 for reverifications)
on the employer’s behalf.
According to USCIS’s Form I-9 instructions,
an authorized representative can be any person you designate to
complete and sign the Form I-9 on your behalf. However, employers are
liable for any violations in connection with the form or the
verification process, including any violations of the employer
sanctions laws committed by the person designated to act on your
behalf. Therefore, many employers may want to use a reputable network of
trained I-9 completers to help reduce the potential regulatory risk.
No, employers must only conduct physical inspections of I-9
documents that were “virtually” inspected during the pandemic through
video, email, fax, or secure upload. If you used an in-person
authorized representative process when you completed the I-9 OR you
have already met in-person with your employee to review documents
after the fact, then you DO NOT need to conduct another physical
inspection by August 30, 2023.
ICE may treat the lack of an in-person document verification
and attestation as a substantive violation, which can incur a fine
of $272 to $2,701per form according to the latest federal
guidelines for civil monetary penalties.
In addition, in their recent FAQs, USCIS noted that
“an employer cannot retain an employee who the employer knows is not
authorized to work in the United States or that does not fulfill Form
I-9 documentary requirements. This includes presenting documentation
for in-person physical examination.”
Employers are strongly encouraged to speak with their HR,
counsel and other professionals regarding audit risk and options
before making any employment decisions.
If you’re using an Equifax I-9 product, please review our COVID-19 Virtual
Inspection Updates page for detailed instructions on how to help
identify I-9s that were completed using our special “virtual” I-9
functionalities. For further instructions, feel free to contact Workforce Solutions Support (WSS).
If you weren’t using the virtual functionality or completed
these I-9s through some other process, you’ll need to carefully
review the I-9s to see if you can make that determination through
other means. The following suggestions may be helpful:
Check each I-9 to see if “COVID-19” or other
similar annotation was entered in the Additional Information
box in Section 2 or in the margins
for any records (emails, announcements, etc.) of when you
began using the virtual inspection process at your
organization, which might give you the start date of
potential I-9s needing inspection
any records (emails, announcements, etc.) of when you
stopped using the virtual inspection process at your
Identify who signed or completed
the Section 2s or Section 3s and compare their location with the
new hire’s location (i.e., to see if they are in different states
or otherwise far apart)
According to the USCIS FAQs, if the
employee separates before the physical inspection can be completed,
include an explanation with the I-9 and the date of the employee’s separation.
A physical in-person inspection involves the reviewer
examining the I-9 documents presented by the employee to determine
if they appear to be genuine and relate to the employee presenting
them. This is the same “review process” that an employer typically
completes when completing Section 2 for a new hire or Section 3 for
a reverification per the Form I-9 instructions.
Important: if the physical inspection for a new hire is
being conducted by a different individual (which is often the case),
ICE has specifically noted that the employer should complete a new
Section 2, which would involve the reviewer entering all of the
document information into Section 2 and signing the form. See here (top of page
2) for the ICE COVID-19 FAQ on using a different completer.
The Equifax I-9 Anywhere service may help facilitate this
process through our nationwide network of trained I-9 completers.
For more information, please visit this link.
If the physical inspection is conducted by the same
individual who previously reviewed the I-9 virtually, the employer
may simply update the date the physical inspection was performed,
followed by the reviewer’s initials. Here is a mockup from USCIS
which shows how the Form I-9 may be annotated. If you have questions
on how to update an I-9 in an Equifax product (when the same completer
is involved), please contact Workforce Solutions Support (WSS).
No, according to the USCIS FAQs, the
employee may choose to present different documents (one from List A or
one from List B in combination with one from List C) at the time of
the physical inspection. If different documents are presented, USCIS
prefers that you complete a new Section 2 with the document information.
Since ICE also prefers a new Section 2 if the document
completer is different (see answer to question 7 above), employers
may find it advantageous to complete new I-9s across the board for
physical inspections to help ensure that the employee is afforded
the opportunity to present a document of his or her choosing.
Employers should consider drafting a communication plan to
notify impacted employees of the need for a physical I-9 document
inspection. In doing so, employers should explain the process, the
timelines, and also provide a point of contact if questions arise.
If a new I-9 is completed, the employer should keep/retain
both the original virtual I-9 and the follow-up physical
inspection I-9 together. Having both I-9s will help explain why the
second I-9 was completed at a much later date.
Lastly, the new I-9 typically should not be submitted to
E-Verify (assuming that the individual was previously submitted when
the virtual I-9 was completed). See the last FAQ here which
mentions that a new E-Verify should not be created.
The two primary links have been inserted throughout our
answers to this FAQ and are reproduced here:
ICE FAQ (important with respect to using a different
USCIS FAQ (most of the guidance is available here)
Watch the aforementioned on-demand webinar with me, John Fay.
Learn more about the new timeline for physical
inspections of virtual verifications completed during the
Discover steps you can take now to
help implement a plan for conducting physical inspections at your
See me answer other burning I-9
Sign up for our next webinar where I will go into more detail
about documentation for Form I-9s and pitfalls to try to avoid.
The information provided is intended as general
guidance and is not intended to convey any tax, benefits, or
legal advice. For information pertaining to your company and
its specific facts and needs, please consult your own tax
advisor or legal counsel. Equifax Workforce Solutions
provides services that can help employers reduce their
compliance risks. Details on our provision of these services
and related support will be contained in your services
agreement. Links to sources may be to third party sites. We
have no control over and assume no responsibility for the
content, privacy policies or practices of any third party
sites or services.