United States: DHS Issues New Edition of Form I-9 As New Remote Verification Option Takes Effect for E-Verify Employers

The new form coincides with the effective date of new guidance for an alternative procedure to physical inspection of Form I-9 documents. As we reported previously, eligible E-Verify employers are able to conduct remote inspection of employees’ identity and work authorization documents subject to the following requirements:

• Remote inspection is available to E-Verify employers, but only with respect to hiring sites that are enrolled in E-Verify. If a hiring site is not covered by the employer’s E-Verify enrollment, remote verification will not be available at that site.
• Remote inspection is available to E-Verify employers for new employees hired on or after August 1, 2023. Qualified employers may not use this remote document inspection process for employees hired before August 1, unless they are doing so to satisfy the special physical examination requirement of the temporary DHS COVID I-9 flexibilities, as discussed below.
• If a qualifying E-Verify employer uses the alternative remote procedure for new employees at a hiring site, it must do so consistently for all employees at the site. However, a qualified employer may choose to offer remote inspection for remote hires only but continue to use in-person physical examination for onsite or hybrid onsite/remote employees, as long as the employer does not adopt this practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin.
• If an employee is unable or unwilling to submit documents using the alternative remote procedure, the employer must permit the employee to submit documents in person for physical examination.

Qualified employers are not required to use the alternative remote inspection process; they may opt to continue in-person physical documentation inspection. In any event, employers that enroll in E-Verify must comply with all E-Verify requirements. 

The employee must complete Section 1 of the Form I-9 on or before the first day of employment. Within three business days of the employee’s first day of employment, a qualified employer that wishes to use the alternative remote procedure must ensure that the following is accomplished:

• The employee must transmit to the employer a copy of the I-9 document(s) they wish to present. If a document is two-sided, a copy of both the front and back must be transmitted.
• 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. If a document is two-sided, a copy of the front and back must be examined.
• 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 Form I-9, the employer must check a box indicating that the alternative procedure was used to examine documentation to complete Section 2 of the form or for reverification. For the period through October 31, 2023, if the employer uses the current version of the form, the employer must write “alternative procedure” in the Additional Information field in Section 2.
• The employer must retain a clear and legible copy of the document(s) presented. If the document is two-sided, a copy of the front and back must be retained.
• In the event of a government audit or investigation, the employer must make available copies of the I-9 documents presented by the employee.

Employers that remotely inspected an employee’s I-9 documents during DHS’s COVID-19 flexibilities have until August 30, 2023, to physically inspect that employees’ documents in person. The new rule does not eliminate the need to meet the August 30, 2023 deadline. However, the new rule allows employers that were enrolled in E-Verify during DHS’s temporary COVID-19 flexible I-9 procedures and used those procedures to complete the I-9 form using remote or virtual document review to use the new alternative remote procedure to satisfy the requirement to physically examine Form I-9 documentation that was examined remotely during the COVID-19 flexibilities.

To qualify for this option, the employer must have: (1) been enrolled in E-Verify at the time the employer performed remote examination of I-9 documents or reverification during the COVID-19 flexibilities; (2) created an E-Verify case for the employee, other than in a reverification situation; and (3) performed remote inspection between March 20, 2020, and July 31, 2023. If the employer qualifies to utilize the new alternative option, then the employer should utilize the new remote I-9 procedure outlined above and write “alternative procedure” in the Additional Information field of the original I-9, along with the date on which the employer conducted the live video interaction to review the employee’s documentation.

Employers that were not enrolled in E-Verify at the time they performed a COVID-19 remote inspection of an employee’s documents cannot use this alternative procedure and must comply with the DHS requirement to physically examine the employee’s I-9 documents in the employee’s physical presence by August 30.