On July 21, 2023, the U.S. Department of Homeland Security (DHS) announced a new flexible option for remote completion of Form I-9 and inspection of accompanying identity and eligibility documents. This option is available to qualifying employers participating in E-Verify.

Employers that participate in E-Verify and are in good standing will now be able to conduct I-9 document inspection and verification electronically through a live video call interaction rather than by examining the employee’s identity and employment authorization documents in person. 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; complies 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 participate in good standing in E-Verify at any time during which the employer uses the alternative procedure.

This important update accommodates the realities of the post-COVID-19 economy, in which more Americans are working remotely. This new flexible option takes the form of a final rule and Federal Register notice, effective Aug. 1, 2023; one day after the temporary COVID-19 flexibilities are set to expire. (For details, see McGuireWoods’ previous alert, “DHS to End Remote I-9 Inspection Temporary Flexibility on July 31, 2023.”)

Employers That Used E-Verify May Skip Physical Re-verification of Documents Remotely Inspected During COVID-19

On May 4, DHS announced an end to the temporary flexibility permitting Form I-9 documents to be inspected remotely. Under the May 4 rule, all employers would have had 30 days to reach compliance with Form I-9 physical examination requirements after the COVID-19 flexibilities sunset on July 31, 2023.

Under the new July 21 rule, employers who participated in E-Verify and created E-Verify cases for employees during the COVID-19 flexibility period are excused from physical re-inspection and re-verification requirements for their existing workforce. Although these employers are not exempt from re-verification requirements altogether, they can use the remote alternative procedure to satisfy the required physical examination of the employee’s documents.

All employers that use the remote alternative procedure instead of physical examination must add “alternative procedure” with the date of examination (i.e., the new date the employer performed a live video interaction) to the Section 2 Additional Information field on the existing Form I-9 or in Section 3, as appropriate.

Employers That Are Not Enrolled in E-Verify

Employers that do not participate in E-Verify have until Aug. 30, 2023, as previously announced, to perform all required physical examinations of identity and employment authorization documents for employees hired on or after March 20, 2020, based on virtual or remote examinations under the COVID-19 temporary flexibilities.

DHS announced that U.S. Immigration and Customs Enforcement generally will not focus its limited enforcement resources on Form I-9 verification violations for failing to complete physical document examination by Aug. 30, 2023. According to DHS, enforcement of the physical examination requirements will not be a priority where an employer is otherwise compliant with the law and regulation under the COVID-19 flexibilities and can show that it has taken timely steps to complete physical document examination within a reasonable period.

What Is E-Verify?

E-Verify is a free, user-friendly web-based system operated by DHS in partnership with the Social Security Administration. The system enables participating employers to electronically verify the employment eligibility of their employees. Current regulations for the Form I-9 require employers to physically examine, within three business days after the first day of employment, the Form I-9 documentation presented by new employees to ensure that the documentation appears to be genuine and related to the individual who presents it.

DHS’ July 21 rule amends the physical examination requirement to allow a remote alternative to the physical examination of Form I-9 documentation for interested, qualifying employers. While the new rule provides a remote inspection option, it does not mandate the use of the remote option for any employers. Qualifying employers under the new rule may continue to conduct physical examinations.

But 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. A qualified employer may, however, choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work on-site 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. Qualified employers who use the remote alternative procedure with any employee must retain a clear and legible copy of all documents presented by the employee seeking to establish identity and employment eligibility for the Form I-9.

Employers that are not enrolled in E-Verify but wish to utilize the remote procedure going forward may enroll in E-Verify. McGuireWoods lawyers are available to advise on enrollment in E-Verify.

Form I-9 Streamlined

Accompanying the rule are several modifications to Form I-9 to make it easier for employers to use the form. Form I-9 will be just one page and accessible on tablets and mobile devices. This revised form and condensed instructions streamline the materials and reduce the employer and employee burden associated with the form. Employers can begin using the new edition on Aug. 1, 2023. Employers may keep using the prior edition of Form I-9 through Oct. 31, 2023.

Potential for Additional Flexibilities in the Future

Along with using E-Verify as a tool for modernizing employment eligibility verification, DHS has authority under this rule to conduct a pilot program that offers the remote examination option to an even broader category of employers. Data from the pilot will inform future consideration of a broader expansion of the remote examination option, which could allow even more businesses to benefit from flexible options. More information about this pilot likely will be available in upcoming months.