Last week, the U.S. Department of Homeland Security (DHS) formalized the end of the temporary COVID-19 flexibilities which had allowed for remote inspection of documents. DHS previously announced that the flexibilities will end on July 31, 2023, but allowed for a 30-day grace period, making the new deadline to complete all in-person physical inspections by August 30, 2023.
Then on July 25th, 2023, DHS published a final rule allowing the use of an optional alternative remote procedure for certain “qualifying” employers, instead of an in-person physical examination of Form I-9 documentation. The alternative procedure is available beginning on August 1, 2023. In addition, qualifying employers do not have to comply with the August 30th deadline to complete in-person physical inspections.
Which employers are qualified to use the alternative procedure?
At this time, the alternative procedure is available only to qualified employers, i.e. employers who are participants in good standing, in E-Verify. A participant in good standing in E-Verify is an 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.
If a qualified employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site. However, a qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin.
Can qualified employers that were enrolled in E-Verify during the COVID– 19 temporary flexibilities use this alternative procedure to satisfy the requirement to physically examine Form I–9 documentation that had been examined remotely under the COVID–19 flexibilities?
Yes, if certain conditions are met. Qualified employers that
- were enrolled in E-Verify at the time they performed a remote examination of an employee’s Form I-9 documentation for Section 2 or reverification while using the COVID–19 flexibilities,
- created an E-Verify case for that employee (except for reverification), and
- performed the remote inspection between March 20, 2020 and July 31, 2023, can use the alternative procedure to satisfy the required physical examination of the employee’s documents for that Form I–9.
Such employers should not create a new case in E-Verify. All employers that use the alternative procedure instead of physical examination as described above must follow the steps of the alternative procedure and add ‘‘alternative procedure’’ with the date of examination (i.e., the date the employer performed a live video interaction as required under the alternative procedure) to the Section 2 Additional Information field on the new Form I-9 or in Section 3, as appropriate.
This is a tremendous relief for qualifying employers who have been rushing to complete in-person physical inspections by the August 30th deadline. These qualifying employers no longer have to complete an in-person physical inspection of documents and can rely on the optional remote alternative.
The bad news is that employers who were not enrolled in E-Verify at the time they initially performed a remote examination of an employee’s documents (i.e., within three business days of the employee’s first day of employment) under the COVID–19 flexibilities between March 20, 2020 and July 31, 2023, are required to physically examine the employee’s Form I-9 documents in the employee’s physical presence, by the August 30th deadline.
Some employers have asked if they can enroll in E-Verify before July 31st, 2023 to take advantage of this new rule. As a practical matter it’s unlikely that the enrollment process would be completed by July 31st, as getting required log-ins, completing training, etc. will likely take a few weeks.
What is the alternative procedure?
Within three business days of an employee’s first day of employment, a qualified employer (or an authorized representative acting on such an employer’s behalf, such as a third-party vendor) who chooses to use the alternative procedure must:
- Examine copies (front and back, if the document is two-sided) of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
- Conduct a live video interaction (e.g. Zoom, Microsoft Teams, Webex, Google Meet, Ring Central, WhatsApp, Slack, Blue Jeans, etc.) with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must first provide a copy of the document(s) to the employer (per Step 1 above) and then present the same document(s) during the live video interaction;
- 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 for reverification, as applicable;
- Retain a clear and legible copy of the documentation (front and back if the documentation is two-sided);
- In the event of a Form I-9 audit or investigation by a relevant federal government agency, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the I-9 process.
Are there additional document retention requirements associated with the alternative procedure?
Yes. Qualified employers who choose to use the alternative procedure must retain clear and legible copies of all documents presented by the employee for the Form I-9. In the event of an audit, qualifying employers must provide access to these copies upon request. The alternative procedure retention requirement applies only to employees for whom the employer used the alternative procedure, not all employees of the employer.
NB. Under the regular E-Verify process, employers using E-Verify, must make and retain copies of documentation presented by employees from List A of the Form I-9. So, if a qualifying employer does not use the alternative procedure, it must still comply with this document retention requirement.
May a qualified employer continue to examine documents physically instead of using the alternative procedure?
Yes. Use of this alternative procedure is entirely optional. Nothing in the alternative procedure prevents qualified employers from physically examining documents for the Form I-9.
May a qualified employer offer the alternative procedure to only some employees?
A qualified employer does not need to use the alternative procedure, but if a qualified employer chooses to offer the alternative procedure to some employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site. However, a qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic. Under no circumstances can employers unlawfully discriminate, such as by deciding who is eligible for the alternative procedure based on a protected characteristic.
Can all employers take advantage of this alternative procedure?
No. At this time, only employers who are participants in good standing in E-Verify are eligible to use the alternative procedure.
Are there special Form I-9 reporting requirements associated with the alternative procedure?
Yes, qualified employers must indicate by completing the corresponding box, on the new Form I-9, that an alternative procedure was used to examine documentation for either Section 2 or when conducting reverification.
When does the alternative procedure go into effect?
Qualified employers may use the alternative procedure starting on August 1, 2023.
If the employee does not want the employer to apply the alternative procedure with respect to that employee, can qualified employers refuse to perform physical document examination?
No, qualified employers must allow employees who are unable or unwilling to submit documentation using the alternative procedure to submit documentation for physical examination. Nothing in the alternative procedure prevents an employer from physically examining documents when requested to do so by an employee.
What methods of document verification are acceptable?
To determine whether the documentation reasonably appears to be genuine, the qualified employer (or an authorized representative acting on the employer’s behalf, such as a third-party vendor) must examine a copy of each document presented by the employee. In addition, the qualified employer must conduct a live video interaction with the employee who presents the document(s) to ensure that the documentation relates to the employee. The employee must first transmit a copy of the document(s) to the employer and then present the same document(s) during the live video interaction.
New Version of Form I-9 Coming! Release Date of August 1, 2023
In other I-9 news, USCIS announced that a new version of Form I-9 is being released on August 1, 2023. The version date of “(Rev. 08/01/23)” is located on the bottom left corner of the new form. Employers may continue using the prior version of the Form I-9 (Rev. 10/21/19) through October 31, 2023. After October 31, 2023, the prior version of Form I-9 will be obsolete and no longer valid for use. Beginning November 1, 2023, employers who fail to use the new version of Form I-9 (Rev.08/01/23) may be subject to penalties.
The newly updated Form I-9 includes some of the following changes:
- Reduced Sections 1 and 2 to one page
- Moved the Section 3 Reverification and Rehire section to a separate, stand-alone supplement (Supplement B) that employers can print if or when required.
- Ensured the form can be filled out on tablets and mobile devices.
- Revised the List of Acceptable Documents to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation.
- Added a box 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 inspection.
As a reminder, employers do not need to complete the new Form I-9 for current employees who already have a completed Form I-9 on file, unless reverification occurs after October 31, 2023. For reverifications occurring after October 31, 2023, employers should use the new Form I-9 Supplement B and attach it to the prior Form I-9.
That’s a lot of I-9 news for a week! Loke Walsh Immigration Law will continue to keep you posted with any updates!
Please reach out to the LWIL team if you have any questions.
