Employers are required to use the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) Employment Eligibility Verification (Form I-9) to verify the identity and employment authorization for individuals hired for employment in the U.S.

Traditionally, in connection with completing the Form I-9, employers (or their authorized representatives) were required to examine an employee’s identity and employment authorization documents in person. With a new rule effective August 1, 2023, certain qualified businesses will be able to review these documents remotely.

Employers are required to use the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) Employment Eligibility Verification (Form I-9) to verify the identity and employment authorization for individuals hired for employment in the U.S.

Traditionally, in connection with completing the Form I-9, employers (or their authorized representatives) were required to examine an employee’s identity and employment authorization documents in person. With a new rule effective August 1, 2023, certain qualified businesses will be able to review these documents remotely.

COVID-19 Flexibilities

In response to the COVID-19 pandemic, as stated in our previous alert, flexibilities were implemented allowing employers to inspect an employee’s identity and employment authorization documents remotely. These flexibilities were only available to employers who were fully remote and expired on July 31, 2023.

Employers who do not participate in E-Verify have until August 30, 2023 to perform all required physical examinations of identity and employment authorization documents for those individuals hired on or after March 20, 2020, and who have received only a virtual or remote examination under the COVID-19 temporary flexibilities.

New Alternative Procedure Option

In recognizing, among other things, the current post-pandemic realities of businesses’ fully remote or hybrid work arrangements, a new flexible option or alternative procedure is now available to certain qualified businesses beginning August 1, 2023. This new alternative procedure is set forth in the Final Rule on Optional Alternatives to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9), effective August 1, 2023, published in the Federal Register on July 25, 2023.

Under the Final Rule, qualified employers, meaning those employees who are enrolled and participate in good standing in E-Verify, will have the option to examine Form I-9 authorization documents remotely, through a live video interaction like remote videoconferencing for real-time verification.

Within three business days of an employee’s first day of employment, a qualified employer (or an authorized representative) who chooses to use the alternative procedure must:

• Examine copies (front and back, if the document is two-sided) of the Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
• Conduct a live video interaction 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 transmit 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, consistent with applicable regulations, a clear and legible copy of the documentation (front and back, if the documentation is two-sided); and
• In the event of a Form I-9 audit or investigation by a relevant federal government official, 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 employment eligibility verification process.

Revised Form I-9: What’s New?

Accompanying the new Final Rule, USCIS published a new Form I-9 on August 1, 2023. Among other differences, the new Form I-9:

• Is now a single-sided sheet;
• Is designed to be accessible and fillable on tablets and mobile devices;
• Revises the Lists of Acceptable Documents page to include some acceptable receipts; and
• Includes a checkbox for employers to indicate they examined the Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than by physical examination.

While U.S. employers may begin to use the new Form I-9 as of August 1, 2023, they may continue to use the prior version through October 31, 2023. As of November 1, 2023, all U.S. employers must use the new Form I-9.

Non-Discrimination

If a qualified employer chooses to offer the alternative procedure at an E-Verify site, the 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, as long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on any protected characteristics (e.g., citizenship, immigration status, national origin). Additionally, new E-Verify employers and any users who manage and create E-Verify cases must complete a free E-Verify tutorial that includes fraud awareness and anti-discrimination training.

Form I-9 Retention Requirement and Inspections

Employers must retain a Form I-9 for each person they hire for three years after the date of hire, or one year after the date employment ends, whichever date is later.

DHS, the Department of Justice’s Civil Rights Division, Immigrant and Employee Rights Section (IER), and the U.S. Department of Labor (DOL) officers are authorized to inspect Forms I-9, including any copies of employees’ documents retained with the corresponding Form I-9. Officers may give a minimum of three business days’ notice before starting an inspection. Employers may be subject to civil violations for Form I-9 and immigration-related employment discrimination.

As such, employers may choose to immediately take steps to conduct an internal audit of their Forms I-9 and related verification procedures to ensure compliance.

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