Department of Homeland Security Ends Covid-19 Temporary Flexibilities and Rolls Out New E-Verify Alternative Verification Procedures

Stokes Wagner

Beginning in March of 2020, the Department of Homeland Security (“DHS”) and U.S. Immigration and Customs Enforcement (“ICE”) allowed employers to complete the I-9 process remotely on account of the COVID-19 pandemic. On May 4, 2023, ICE announced that these Covid-19 “flexibilities,” would end on July 31, 2023, and that employers would have until August 30, 2023 to conduct an in-person physical inspection for all employees remotely verified and hired during Covid-19.

However, on July 25, 2023, DHS announced the roll-out of an “Alternative Procedure” in a Federal Register Notice for Form I-9 verifications going forward, and a way to forego the August 30, 2023 deadline for in-person inspections of remotely hired employees during Covid-19. The Alternative Procedure would allow employers to remotely verify employees’ Form I-9 documents if the employer is enrolled in “E-Verify.”

To qualify to use the Alternative Procedure for new employees, employers must (1) enroll in E-Verify with respect to all hiring sites in the U.S. that use the Alternative Procedure; (2) comply with all requirements of the E-Verify program; and (3) continue to be in good standing with E-Verify during the use of the Alternative Procedure. If an employer chooses to use the Alternative Procedure for new employees at an E-Verify hiring site, then the employer must do so consistently for all employees at that site. However, it is acceptable for an employer to offer the Alternative Procedure for remote hires only but conduct in-personal inspections for all employees who work on site or in a hybrid capacity, if not done for a discriminatory purpose.

Nevertheless, for employers who remotely verified employees during Covid-19 to forego DHS’ August 30 deadline for in-person physical inspections, employers must have:

1: performed remote examination of an employee’s documents between March 20, 2020, and July 31, 2023;

2: been enrolled in E-Verify at the time they completed the Form I-9 for that employee;

3: created a case in E-Verify for that employee (except for reverification); and

4: be currently enrolled in and continue to participate in E-Verify.

All employers who do not meet these requirements, must conduct in-person physical inspections by August 30, 2023.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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