Effective August 1, 2023, the U.S. Citizenship and Immigration Services (“USCIS”) has amended the I-9 Form. One of the most notable changes includes a checkbox allowing employers enrolled in E-Verify to indicate they have followed the alternative procedure authorized by the Department of Homeland Security (“DHS”) for remote document examination.

Employers hoping to take advantage of these new rules must comply with the following:

• Be enrolled in E-Verify and be in good standing.
• Examine copies of Form I-9 documents for new employees and for reverification of existing employees 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 the first step above) and then present the same document(s) during the live video interaction.
• Obtain and retain clear and legible document copies (front and back if the documentation is two-sided).
• Undergo specific training available in the E-Verify system.
• Affirmatively note on the Form I-9 that they have conducted the I-9 document review using the alternative procedure.

Consistency is Essential

Qualified employers who choose to utilize the alternative, remote procedure must do so consistently to avoid claims of discrimination. However, according to USCIS Final Rule, qualified employers may offer the alternative procedure for remote employees, only, and continue physical examination procedures for in-person or hybrid employees. Employers that utilize E-Verify must do so for all newly hired employees in the U.S. at the employer’s E-Verify locations.

Impact on the End of COVID-19 Flexibility Policy for Form I-9

Employers who used E-Verify and COVID‑19 I‑9 flexibilities (March 20, 2020 to July 31, 2023) may choose to use the new virtual procedure to satisfy the physical document examination requirement by August 30. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete in-person physical examination by August 30, 2023.

Remaining Considerations

At this point, interested employers should be asking the following questions:

• Are we enrolled in E-Verify?
• If so, are we in “good standing”?
• Have our employer contacts who will be completing the Form I-9 completed the required trainings on document fraud and discrimination offered through E-Verify?
• Would we use the alternative, remote document inspection procedure for all new hires or just remote workers?
• What will be our method of secure document transfer?
• How will we communicate to employees about our expectations and the process for the I-9 procedures?

Regardless of what process employers decide best fits their organization’s needs, they must remain diligent with their I-9 compliance.