DHS Permits Remote I-9 Completion for E-Verify Employers

Starting August 1, 2023, the U.S. Department of Homeland Security (DHS) will allow E-Verify employers to complete I-9 forms for the first time in a truly remote fashion. A revised version of the I-9 form will also become available for use on that date as well.

This is an important and welcome policy change from DHS and one that finally recognizes the dramatic rise in the numbers of employees working remotely whether on a hybrid or permanent basis. The new remote document review option is an important improvement over the remote document review flexibility policy that ICE authorized in response to the COVID-19 crisis, because, unlike the COVID-19 remote document policy, it will not require employee documents to be physically inspected by employers, and the I-9 form to be notated regarding that inspection, at a later date.

The New Remote Document Review Option

Under the normal I-9 rules, an employer must physically examine the original identity and work eligibility documents presented by the newly hired employee in the employee’s presence and sign the required attestation in section 2 of the I-9 form. That rule is still in effect however the government will now give employers enrolled and in good standing in the E-Verify program the option to use an alternative procedure to remotely review the employee’s documents during I-9 completion. Remote document inspection will only be available to employers enrolled in E-Verify, and only at locations where the employer is using E-Verify. The essential elements of the new remote document review alternative are as follows:

• • The new remote document review alternative can only be used for employees hired on or after August 1, 2023;

• • The employee must transmit to the employer a copy (both front and back) of the I-9 document(s) they wish to present to demonstrate their identity and employment eligibility;
  • The employer must examine a copy of each I-9 document presented by the employee to ensure that the document(s) appear genuine and related to the employee;
  • The employer must conduct a live video interaction with the employee to ensure that the documents presented reasonably appear to be genuine and related to the employee. The employee must present the document(s) that were transmitted in copy to the employer;
  • On the new edition of the I-9 form, the employer will be required to check a box indicating that the alternative procedure was used to examine documentation to complete Section 2 of the form or Section 3 for re-verification. Through October 31, 2023, if the employer uses the current version of the form, the employer must notate “alternative procedure” in the Additional Information field in Section 2; and,
  • The employer must retain clear and legible copies of the documents presented by the employee with the I-9 form (even if it normally does not retain copies of I-9 documents).

DHS is not eliminating the August 30 deadline to complete physical document review for those employee I-9 forms that were completed using remote or virtual document review during the COVID-19 emergency. However, it will allow E-Verify employers to use the new alternative remote document review process to meet the deadline. To be eligible, the employer must have been enrolled in E-Verify at the time the I-9 was initially completed using remote or virtual document review and have created a case in E-Verify for the employee during the period while the ICE COVID-19 document review flexibility policy was in effect. E-Verify employers using the remote document review process to meet the August 30 deadline should write in the other information field in section 2 of the I-9, “Alternative Procedure” and write in the date the live video interaction to review the employee’s documents was conducted. If an employer was not enrolled in E-Verify during that period, it cannot use the new remote document review policy to complete the physical document inspection requirement.

Incorporating the Remote Document Review Process in Your I-9 Compliance Program

Employers who have not enrolled in E-Verify, or those who have not enrolled in all locations in the program, will want to consider enrolling to take advantage of the remote document review option.  Employers will need to incorporate certain requirements into their I-9 process to utilize the remote document review option.

• • Procedures for employees to transmit copies of their documents and to ensure that the copies are retained with the I-9 form. Employers normally have the choice of whether to retain copies of employee documents but will be required to retain copies of all employee documents when using the remote document review option.
  • Employers will need to notate the I-9 form to indicate when the remote document review option is utilized. On the updated version of the form, the employer must check the box indicating that remote review was utilized. Employers can continue to use the current form version through October 31, 2023. If the current version is used during that period, the form should be notated with “alternative procedure” in the other information field in section 2.
  • Employers will need to incorporate the required live video interaction into the I-9 completion process. The employer cannot just rely on examining copies of the employee’s documents to complete section 2 (or section 3 in the case of a re-verification) of the I-9 form.

Need to Know More?

For further information on the new I-9 document remote review procedures, the new I-9 form version or questions related to employment verification and I-9 compliance in general, please contact Partner Daniel Brown at [email protected].

This blog was published on July 24, 2023, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please visit our dedicated COVID-19 site, subscribe to our alerts and follow us on LinkedIn, Twitter, Facebook and Instagram.