The I-9 employment verification process is taking a giant step into the 21st Century making onboarding remote hires a wee bit easier for many U.S. employers. This new alternative process will take effect on August 1, 2023, in conjunction with the implementation of a new version of the I-9, Employment Eligibility Verification form.
Form I-9 Reengineered
In March 2022, the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) issued a regulatory notice and previewed a newly designed version of the Form I-9. Then on July 25, 2023, the DHS and USCIS announced the new I-9 (Rev. 08/01/23) will be available on August 1, 2023. The current version (Rev. 10/21/19) can be used through October 31, 2023, and all employers will be required to use the new version from November 1, 2023.
The new version will incorporate the following changes:
- Reduces Sections 1 and 2 from 2 pages to a single-sided page. No previous fields were removed but some fields were merged;
- Section 1 Preparer/Translator Certification is relocated to a separate, standalone supplement (A) that only requires completion when necessary;
- Section 3 Reverification and Rehire is moved to a separate, standalone supplement (B) that employers need only print and complete when utilizing for reverification an employee’s work authorization or rehiring an employee with an existing I-9;
- Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to I-9 Central containing information on automatic extensions of employment authorization documentation;
- Reduces the Form I-9 instructions from 15 pages to 8 pages. However, the comprehensive guide, Handbook for Employers M-274, remains a mere 140 pages when printed;
- Added a box (in Sections 2 and 3) that eligible employers must check if the employee’s Form I–9 documentation was examined under a DHS-authorized alternative procedure rather than via physical examination. If an employer uses the 2019 version of the I-9 and elects to use the new alternative remote inspection procedure (as explained below), the employer must enter “alternative procedure” in the Additional Information field of Section 2 of Form I-9; and
- The I-9 is now configured as form fillable on tablets and mobile devices.
To summarize, Employers may utilize this new version for newly completed Forms I-9 from August 1, 2023, but may also continue using the current version (Rev. 10/21/19) until October 31, 2023. Employers are required to complete a Form I-9 for all employees hired after November 6, 1986, and retain all completed I-9s (along with supplements and copies of relevant identity and employment authorization documents) for active employees. Upon termination of employment, employers must retain the I-9 for the later of one (1) year after termination or three (3) years after the date of hire.
New Alternative Permits Remote Examination of I-9 Documents for “Qualified” Employers
As we detailed in previous posts, during the COVID-19 pandemic, DHS permitted special “flexibilities” temporarily permitting remote and virtual review of identity and employment eligibility documents during the I-9 process. Traditionally, regulations and I-9 instructions require employers to physically examine the documentation presented by newly hired employees to ensure the documents reasonably appear to be genuine and relate to the employee. Now, as the COVID flexibilities are phased out, DHS is implementing a permanent alternative to physical inspection of I-9 documents. This new remote inspection option is implemented by a final rule taking effect on August 1, 2023. However, as we outline below, there is a catch (or two).
The New Alternative – Examination of Documents Via Live Video
DHS has created an alternative to employers’ traditional requirement to physically examine the employee’s original I-9 documents. Within three (3) business days of an employee’s first day of employment, a qualified employer (or an authorized representative acting on such an employer’s behalf) may now do all of the following:
- Ensure the employee transmits a copy of the I-9 document(s) they wish to present for identity and work authorization. If a document is two-sided, a copy of both the front and backside of the document must be transmitted;
- Examine copies of Form I–9 documents (front and back, if the document is two-sided) or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
- Conduct a live video interaction (e.g., Zoom, Teams, FaceTime, Skype, WebEx or a similar platform) with the employee presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the employee;
- Indicate on the Form I–9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or Section 3 for reverification, as applicable;
- As indicated above, the new edition of the Form I-9 (Rev. 08/01/23) will contain a box next to language stating “Check here if you used an alternative procedure authorized by DHS to examine documents.” For those using the current version (Rev. 10/21/19) until October 31, 2023, 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 documentation (front and back if two-sided) presented by the employee; and
- In the event of a Form I–9 audit or investigation by a relevant federal agency, make available, along with the Form I-9, the clear and legible copies of the identity and employment authorization documentation presented by the employee.
The Catch – Only Available to Qualified E-Verify Employers
This alternative video inspection procedure is only available to “qualified employers” who are participating in E-Verify and are in good standing. The Rule defines “good standing” as:
[A]n employer that has enrolled in E-Verify with respect to all hiring sites in the United States that use the alternative procedure; is in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and continues to be a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure.
Going forward, newly enrolled E-Verify Employers will also be eligible to use this alternative inspection procedure.
Sync-up with COVID-19 Flexibilities Process
As we explained in our previous post, DHS announced the phase-out, as of July 31, 2023, of the COVID-19 “flexibilities” relating to physical inspection of identity and employment eligibility documents, temporarily permitting remote and virtual review of such documents. Employers are required to complete physical inspection of any such documents and update their I-9s no later than August 30, 2023.
Once this new alternative takes effect on August 1st, DHS will permit qualified E-Verify employers to utilize the alternative video inspection process to satisfy the COVID-19 flexibility physical inspection requirement provided that:
- The employer was enrolled in E-Verify at the time it performed a remote examination of the I-9 documentation while using the COVID-19 flexibilities;
- An E-Verify case was created for the subject employee; and
- The employer performed the remote inspection between March 20, 2020 and July 31, 2023.
Key Takeaways and Considerations
- As indicated above, the new remote alternative is available from August 1, 2023, and qualified employers may use the process for employees hired on after August 1st.
- Employers may not use this remote document inspection process for employees hired before August 1st unless they are utilizing same to satisfy the special examination requirements associated with the DHS COVID-19 flexibilities. In other words, if an employer was not enrolled in E-Verify during the COVID-19 flexibilities period, between March 20, 2020 and July 31, 2023, and did not create an E-Verify cases for remotely inspected employees, then the employer cannot utilize this alternative procedure and it must complete in-person physical document inspection of I-9 documents by the August 30, 2023 deadline. See our previous post for related employer obligations and best practices.
- DHS indicated this alternative procedure will not expire but it may amend, suspend or cancel the procedure if deemed necessary to address a public health emergency or other national emergencies.
- A qualified employer is not required to adopt this alternative and can continue to physically examine I-9 documents.
- Employers may choose to offer this alternative solely to remote hires while continuing to conduct physical examination for employees hired onsite. However, the employer must implement the practice consistently and may not adopt a practice for a discriminatory purpose or treat certain employees differently.
- Employees who are unable or unwilling to submit documentation via the alternative procedure, may request an employer to conduct a physical examination of their I-9 documents. Employers must honor such requests.
This new alternative is welcome news to many employers who have struggled with the archaic I-9 verification rules when onboarding remote hires. However, since I-9 paperwork fines can currently tick up to $2,701 per violation, it is critical that employers electing to utilize this new alternative strictly comply with the remote verification procedures and the terms and conditions associated with E-Verify enrollment. As DHS reminds employers in their comments to this rule, “[a]ll employers are subject to audits and investigations. DHS will monitor and evaluate data and information from ICE audits conducted to assess any measurable impacts to system integrity as between the employers that use the alternative procedure and those that continue with physical document inspection.”