On August 1, 2023, the Department of Homeland Security (“DHS”) introduced a process for qualified E-Verify employers to complete I-9 verification in a completely remote manner. Unlike during the DHS COVID-19 temporary flexibilities period, this alternative procedure does not require a physical examination of documents at a later date.

Below is an overview of the alternative procedure:

• Only available for employees hired on or after August 1, 2023;
• The employee must provide the employer a copy (both front and back) of the I-9 document(s) confirming their identity and employment eligibility;
• The employer must examine a copy of each I-9 document provided by the employee to ensure that the document(s) appear genuine and linked to the corresponding employee;
• The employer must conduct a live video communication with the employee to ensure that the documents presented reasonably appear genuine and linked to the employee. 
• Form I-9 completion:
  • New Form I-9 Released on August 1, 2023: the employer must check the box on Page 1, Section 2 of the Form I-9 confirming an alternative procedure was used to examine the documents;
  • Current Form I-9 Through October 31, 2023: the employer must note “alternative procedure” in the Additional Information box on Page 2, Section 2; and
• The employer must maintain clear copies of the documents presented by the employee with the Form I-9.

Qualified employers are not required to use the alternative procedure. However, if the employer chooses to use the alternative procedure, it must be applied consistently to all employees at the E-Verify worksite. Employers must avoid allowing use of the alternative procedure selectively in such a way that may violate anti-discrimination laws. An exception does apply if the employer chooses to limit the use of the alternative procedure to remote employees and maintain an in-person document inspection for all on-site employees.

It is important to note the August 30, 2023 deadline to complete in-person document review for those Forms I-9 completed using remote or virtual document review during the DHS COVID-19 temporary flexibilities period remains in place. However, the new rule does allow qualified E-Verify employers to use the alternative procedure to meet the August 30, 2023 deadline. To qualify, employers must meet the following four requirements:

• Performed remote examination of an employee’s documents between March 20, 2020, and July 31, 2023;
• Been enrolled in E-Verify at the time they completed the Form I-9 for that employee;  
• Created a case in E-Verify for that employee (except for reverification); and  
• Be currently enrolled in and continue to participate in E-Verify.

If qualified employers began the process of updating COVID-related Forms I-9 prior to August 1, 2023, using the typical in-person examination process, they may now still use the alternative procedure for Form I-9 updates.

Employers not enrolled in E-Verify may want to consider enrolling in order to benefit from the alternative procedure in the future. In the meantime, employers that do not meet the four requirements above must conduct a physical examination of documentation by August 30, 2023 for employees: (1) hired on or after March 20, 2020; and (2) whose documents were examined in a remote manner pursuant to the DHS COVID-19 temporary flexibilities policy.