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
July 21, 2023
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At a glance
- The Department of Homeland Security has finalized a regulation that permits it to create exceptions to in-person physical inspection of documents used in the Form I-9 employment eligibility verification process.
- In conjunction with the final rule, DHS is creating a permanent remote I-9 document inspection process, effective for new employees hired on or after August 1, 2023, but this alternative process is limited to employers who are enrolled and in good standing in the E-Verify system.
- Qualifying employers can also use the alternative review process in lieu of undertaking a physical review of documents, to meet the August 30, 2023 deadline for I-9s completed with remote or virtual document review during the COVID-19 emergency, as long as the employer was enrolled in and used E-Verify when the I-9 was initially completed.
- DHS will issue a new edition of Form I-9, dated August 1, 2023. The new form version will become mandatory for all employers on November 1, 2023.
The issue
The Department of Homeland Security has finalized a regulation that permits it to create alternatives to the requirement that employers conduct an in-person physical inspection of documents during the Form I-9 employment eligibility verification process. As authorized by this new regulation, DHS is also announcing a new remote alternative to the physical inspection requirement for employers that are enrolled and in good standing in the E-Verify electronic employment eligibility verification system. The new regulation and guidance are set to be published in the Federal Register on July 25, 2023, and take effect August 1, 2023.
Beginning August 1, eligible E-Verify employers will be 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.
- 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 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. However, they must continue to comply with all standard E-Verify requirements.
The new remote alternative is available beginning August 1, and qualified employers may use this remote alternative to complete I-9s for new employees hired on or after August 1. 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.
The new remote I-9 procedure
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.
Impact of the new procedure on post-COVID-19 inspection requirements
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.
New edition of Form I-9
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.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
