Restaurant Owners, Get Ready to Physically Inspect Employee Documents
The Department of Homeland Security (DHS) has announced that the temporary flexibilities that had been in place since March 2020 for the completion of I-9 Employment Eligibility Verification forms will end on July 31, 2023. This means that California restaurant owners will once again be required to physically inspect all employee work authorization and identification documents presented for the Form I-9 process.
The flexibilities were originally put in place in response to the COVID-19 pandemic, which made it difficult for employers to physically inspect documents in person. However, with the pandemic now largely under control, DHS has determined that the flexibilities are no longer necessary.
California restaurant owners who have not yet physically inspected the documents of employees hired after March 20, 2020, must do so by August 30, 2023. This includes employees who were hired remotely and whose documents were inspected remotely under the flexibilities.
California restaurant owners who fail to physically inspect the documents of their employees by the deadline may be subject to civil fines of up to $2,100 per employee.
Here are some tips for California restaurant owners who need to physically inspect employee documents:
Create a clear employee roster and compare it to all existing I-9s. Identify employees who were hired after March 20, 2020, and whose documents were inspected remotely.
Implement a plan to ensure that all such employees' original documents are inspected in-person before the end of August. Summer vacations will slow down the review process, so it is important to start soon.
If any unrelated errors or omissions are discovered on employees' Form I-9s, correct them following USCIS guidelines.
Original documents are required (with rare exceptions). They must be presented in-person by the employee.
Update the Form I-9 in Section 2 or Section 3 (for reverification), as necessary, by listing the date of the physical inspection and annotating "documents physically examined."
If remote employees work far from employer worksites, employers may use an authorized representative to review the documents in-person on behalf of the employer and update the Form I-9.
If the employer representative who remotely reviewed the original I-9 documents is not available to perform the in-person review of original documents, a different representative can annotate the "Additional Information" box on page 2 of the I-9, or complete a new Form I-9 Section 2 and attach it to the prior remotely inspected Form I-9.
If the employee has since separated from employment, a simple annotation in their Form I-9 "Additional Information" box, including the date of separation, will suffice. There is no need to track down a former employee to review their original documents.
Remotely inspected documents that have since expired can still be reviewed in-person (i.e., US passport, green card, driver's license or state ID) and new documents should not be requested. However, employers must not rely on a now expired document that would have required reverification to prove ongoing work authorization (i.e., EAD or I-94). The employee will need to present a valid List A or List C work authorization document at the time of physical inspection.
An employee who was run through the E-Verify process when they were hired under the I-9 COVID-19 flexibilities provisions will still require the standard in-person inspection of original documents outlined above. However, employers should not create a new E-Verify case nor update the employee's existing E-Verify case relating to the physical inspection of their documents.
California restaurant owners who need assistance with physically inspecting employee documents can contact a qualified immigration attorney.
What does this mean for California restaurant owners?
The end of the COVID-19 I-9 flexibilities means that California restaurant owners will need to make sure that they are physically inspecting the documents of all new employees. This may be a challenge for restaurants with large numbers of remote employees. However, it is important to remember that failing to physically inspect employee documents could result in significant fines.
California restaurant owners should start planning now to ensure that they are in compliance with the new requirements by July 31, 2023. This includes making sure that they have the necessary resources in place to physically inspect documents and that they have a process in place to track the status of employee document inspections.
What if I have questions?
If you have any questions about the end of the COVID-19 I-9 flexibilities, you should contact an attorney. An attorney can help you understand the new requirements and ensure that you are in compliance.
Additionally, USCIS has a page titiled Questions and Answers Related to COVID-19 https://www.uscis.gov/i-9-central/form-i-9-related-news/questions-and-answers-related-to-covid-19
Conclusion
The end of the COVID-19 I-9 flexibilities is a significant change for California restaurant owners. However, by planning ahead and working with an attorney, California restaurant owners can ensure that they are in compliance with the new requirements.
I hope this is helpful!
Disclaimer: This blog post is intended for informational purposes only and does not constitute legal advice. Always consult with a qualified attorney for any legal decisions.