United States: DHS Will Allow Qualified E-Verify Employers to Use Remote I-9 Document Inspection Procedures, and Will Issue New Version of I-9 Form

Within three business days of an employee’s first day of employment, a qualified employer who 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 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 for reverification. For the period 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.
• 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.

As we have reported previously, employers who 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 the live video interaction to review the employee’s documentation was conducted.

Employers who 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.

DHS is issuing a new edition of Form I-9, dated August 1, 2023, which will become mandatory for all employers on November 1, 2023. The new form has not yet been released but is expected to become available for use on August 1.

Employers can use the previous edition, dated October 21, 2019, through October 31, 2023. If an employer uses the 2019 edition of the form and elects to use the new alternative remote inspection procedure, the employer must enter “alternative procedure” in the Additional Information field of Section 2 of Form I-9.