Virtual Examination of I-9 Documentation Now Permitted for Employers Enrolled in E-Verify

On July 25, 2023, just days before the August 1 implementation date, the DHS published a final rule in the Federal Register authorizing a permanent, remote procedure for examining Form I-9 documentation for certain employers (the “Rule”). To utilize this remote procedure, employers must be enrolled in E-Verify, examine and retain copies of all documents, conduct a live video interaction with the employee, and create an E-Verify case if the employee is a new hire. Employers who do not satisfy all of these conditions must comply with I-9 documentation verification requirements exclusively through in-person inspection of the documents.

The USCIS simultaneously announced that it would publish a revised version of Form I-9, Employment Eligibility Verifications on August 1, 2023, which, among other things, would reflect this new examination option. This new Form I-9 has been published and is available here.

Qualified Employers
The Rule published by the DHS applies to “qualified employers” who are “participant[s] in good standing in E-Verify.” An employer is considered a participant in good standing in E-Verify if: 1) it has enrolled in E-Verify with respect to all relevant hiring sites in the United States; 2) it is in compliance 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 3) it continues to be a participant in good standing in E-Verify at all times during which the employer uses the alternative procedure.

Employers may enroll in E-Verify to become “qualified employers,” but must ensure that they comply with the detailed requirements outlined below.

Alternative Procedure
Qualified employers may choose, but are not required, to inspect Form I-9 proof of identity and employment authorization documents using the alternative procedure permitted in the Rule. Under this new option, within three business days of the first day of employment, or by August 30, 2023, for current employees whose documentation was previously remotely inspected:

• The employee must transmit copies (including front and back if the document is two-sided) of the identity and employment authorization documentation to the employer;
• The employer must examine the copies of the Form I-9 documentation to ensure that the documentation presented reasonably appears to be genuine;
• The employer then must conduct a live videoconference with the individual who must present the same documentation to ensure that the documentation reasonably appears to be genuine and related to the individual;
• The employer then indicates on the Form I-9, by completing the corresponding box on the new Form I-9 that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable; and
• The employer must retain, consistent with applicable regulations, a clear and legible copy of the documentation submitted by the employee.

Training Requirements and Anti-Discrimination Measures
The Rule requires that employers who enroll in E-Verify, as well as any users who manage and create E-Verify cases, complete an E-Verify tutorial that includes fraud awareness and antidiscrimination training. Anti-discrimination training provides an overview of how to avoid discrimination in the Form I-9 and E-Verify processes. For example, employers may not request more, different, or specific Form I-9 documents, nor reject valid documentation because of an employee’s citizenship, immigration status, or national origin.

In addition, the Rule requires that, if qualified employers offer the alternative procedure to any new employees at a hiring site, the employer must do so consistently for all employees at that site. A qualified employer may, however, choose to offer the alternative procedure only for remote hires, while continuing to exclusively use physical examination procedures for all employees who work onsite 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.

Additionally, employers must allow employees who are unable or unwilling to submit documentation using the alternative procedure to submit documentation for physical examination.

Reinspection of Remotely Inspected Form I-9s during the COVID-19 Flexibility Period
Employers that followed the COVID-19 document examination flexibilities are permitted to use this alternative virtual procedure beginning August 1, 2023, to satisfy the reinspection requirements only if all of the following conditions are met:

• The employer was enrolled in E-Verify during the period of temporary flexibilities;
• The employer created an E-Verify case for that employee (except in the case of reverification); and
• The remote video inspection was performed between March 20, 2020, and July 31, 2023. 

Employers that meet each of these criteria must indicate in the employee’s current Form I-9 that it used the alternative procedure by adding “alternative procedure” with the date of examination to the Section 2 “Additional Information” field on the Form I-9 or in Section 3, as appropriate.

Employers who were not enrolled in E-Verify at the time they initially performed a remote examination of an employee’s documents during the period of temporary flexibilities are not eligible to use the alternative procedure to satisfy the reinspection requirements, and therefore must physically examine the employee’s I-9 documents in-person and in the employee’s presence.

Consistent with previous announcements, all re-examinations—whether physical or using the alternative procedure—must be completed by August 30, 2023.

Revised Form I-9
The new Form I-9 includes a checkbox to indicate whether an employee’s documentation was examined using the alternative procedure. The form can be completed on tablets and mobile devices. The updated form also includes an anti-discrimination provision, which provides clearer guidance for employers on avoiding discrimination during the Form I-9 process, and terminology changes, replacing the term “alien authorized to work” with “noncitizen authorized to work.”

Employers can start using the new Form I-9 as of August 1, 2023, and are required to use only the new Form I-9 by November 1, 2023.

Next Steps for Employers
The new Rule and updated Form I-9 offer a convenient option for the many employers that already use E-Verify. Employers with remote or hybrid workforces that do not use E-Verify should consider enrolling to help reduce the administrative burden of in-person completion of I-9 documents for remote employees. And any employers that use, or plan to use E-Verify, must ensure that they comply with the additional training and other requirements.