By Melanie M. Ghaw, Esq. and Rachel H. Khedouri, Esq.
On July 25, 2023, the Department of Homeland Security (“DHS”) published a final rule authorizing the Secretary of Homeland Security to provide eligible employers with alternatives to the in-person physical examination requirement for Form I-9 identity and employment eligibility documentation. As discussed in our prior eAlert, the DHS and U.S. Immigration and Customs Enforcement previously announced an end to temporary COVID-19 flexibilities for remote inspections of Form I-9 documents effective July 31, 2023. DHS now has introduced an alternative procedure that provides qualified employers with the option to conduct remote verification electronically with a live video call interaction. DHS’s publication of its authorization of the alternative procedure (“Optional Alternative 1”), which includes helpful FAQs, can be accessed HERE.
To qualify for the remote verification option, employers must be enrolled in and compliant with all requirements of the E-Verify program and have completed required E-Verify training and tutorials as part of the enrollment process. Although a qualified employer is not required to use the alternative procedure, if it chooses to offer the alternative procedure to some employees at a particular E-Verify site, the employer must do so consistently for all employees at that site. Alternatively, an employer may choose only to apply the remote verification alternative to remote employees and continue with physical examination procedures for onsite and hybrid employees, so long as it applies this practice consistently with all employees on the worksite and does not act in a discriminatory manner based on employees’ citizenship, immigration status, or national origin.
Employers who opt to conduct a remote verification must, within three business days of an employee’s start date, examine all Form I-9 documents (front and back, if double-sided) to ensure the documentation presented “reasonably appears to be genuine”; conduct a live video interaction with the individual presenting the documents to ensure that the documentation appears genuine and related to that individual; indicate on the Form I-9 that an alternative method was used to examine the documentation; retain a clear and legible copy of the documentation (which should be the same as presented during the video interaction); and, in the event of a Form I-9 audit or investigation by the federal government, make available copies of the documents presented during the verification process.
Employers who were not enrolled in E-Verify at the time they initially performed a remote examination of an employee’s documents under the COVID-19 flexibilities have until August 30, 2023, to perform the required physical examination of Form I-9 documents for all individuals hired on or after March 20, 2020. Qualified employers who were enrolled in E-Verify and created an E-Verify case at the time of remotely examining an employee’s Form I-9 documents under the COVID-19 flexibilities may use the alternative procedure starting August 1, 2023, to satisfy the August 30, 2023 requirements and need not create a new case in E-Verify.
Additionally, the U.S. Citizenship and Immigration Services has announced that it will publish a revised Form I-9 on August 1, 2023, which employers may begin using on that date. Although employers may choose to continue using the existing October 2019 version of the Form I-9 through October 31, 2023, all employers must begin using the new version as of November 1, 2023. The revised Form I-9 makes some improvements intended to simplify the process; for example, the new Form reduces Sections 1 and 2 to a single-sided sheet, is designed to be fillable on tablets and mobile devices, reduces the lengthy instructions nearly in half, and includes a checkbox for employers to indicate they examined the documents remotely under the new alternative process announced by DHS.
If you have any questions on how best to meet your Form I-9 obligations, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.