DHS Announces New Form I-9 Remote Verification Flexibility

On July 25, 2023, the U.S. Department of Homeland Security (DHS) published a final rule addressing a new optional remote procedure for the Form I-9 employment eligibility verification process, effective August 1, 2023.  As a reminder, Form I-9 regulations require employers to physically examine identity and employment verification documentation presented by new employees, within three days of employment, to ensure the documents appear genuine and relate to the individual who presents them.  Under the new rule, DHS will allow employers who participate in E-Verify and are in good standing the option of conducting verification of an employee’s identity and employment authorization documents electronically via a live video call—instead of in person.  While there remain some details to work out when the new procedure goes live on August 1^st, the following is what we know so far. 

Who can use the new procedure?

To qualify for the optional remote procedure, an employer must be an E-Verify participant in good standing.  This means that the employer:

1. has enrolled in E-Verify for all hiring sites in the US;
2. is in compliance with all requirements of the E-Verify program; and
3. continues to be a participant in good standing with E-Verify at any time during which the employer uses this optional remote procedure.

Remember, employers who enroll in E-Verify and any users who manage use of E-Verify must complete required trainings and tutorials.  Signing up takes time!   

Also, a qualified employer who chooses to offer the optional remote procedure at an E-Verify hiring site must do so consistently for all employees at the site.  However, qualified employers can make process distinctions between remote hires and onsite or hybrid workers, as long as the distinction is not made for discriminatory purposes.  This means a qualified employer could require remote hires to use the alternative remote verification process, while requiring onsite or hybrid hires to present employment verification documents in-person.

What is required under the optional remote procedure?

Within three days of the employee’s first day of employment, all of the following must take place:

1. The employee must first transmit a copy of the document(s) to the employer from the List of Acceptable Documents (front and back, if applicable) or an acceptable receipt;
2. The employer must examine the documents, both the transmitted copy and presented document, by conducting 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;
3. The employer must indicate on the new Form I–9 that an alternative procedure was used to examine documentation to complete the form by completing the corresponding box,[1]; and
4. The employer must retain a clear and legible copy of the documentation (front and back, if applicable) to have available in the event of a Form I-9 audit or investigation.

PLEASE NOTE:  the new rules do not require employees to submit documentation through this optional remote process, if the employee is unable or unwilling to do so.  In that case, the employee remains obligated to present required Form I-9 verification documents in person to the employer or its authorized representative. 

Does this optional remote process apply to employers who are now verifying documents previously examined remotely under the COVID-19 flexibilities?

During the COVID-19 pandemic, DHS temporarily gave certain employers flexibility in verifying acceptable document virtually or remotely.  These COVID-19 flexibilities have expired; and, employers who took advantage of them have only until August 30, 2023, to perform in-person document verifications for those individuals whose documents were initially inspected virtually or remotely.

DHS indicated in the notice that the new rule permits qualified employers to use the new remote verification process to satisfy physical examination obligations under the COVID-19 flexibilities, but only if certain conditions are met.  The employer must have:

1. Been enrolled in E-Verify at the time they performed a remote examination of Form I-9 documentation under the COVID-19 flexibilities;
2. Created an E-Verify case for that employee (except for reverification); and
3. Performed the initial remote inspection between March 20, 2020 and July 1, 2023.

Employers choosing to use the optional remote process for the COVID-19 reverification process must write or add “alternative procedure” with the date of the live video examination in the Section 2 Additional Information field on the Form I-9 prepared during the above dates.

If your organization cannot meet these requirements, you may not utilize the optional remote process and must instead perform physical inspection by the August 30, 2023 deadline.  For example, an employer who was not enrolled in E-Verify at the time of initial remote or virtual inspection under COVID-19 flexibilities is not permitted to now utilize the new optional remote process.  However, DHS indicated that, in addition to the recently announced process, DHS has authority under the new rule to conduct a pilot program that offers the remote examination option to more employers. DHS plans to gather data from the pilot program in making a decision on expanding the remote examination option to other employers.

Final Thoughts

Overall, the new remote verification procedure is a welcome option for those employers who frequently hire remote workers who rarely or never come into the office, making in-person document verification a challenge.  However, DHS does not require qualified employers to use the remote procedure for verification; it merely provides a flexible option.  Employers may still choose to conduct physical examination of required Form I-9 documents. 

Don’t forget – as of August 1st, there will also be a new version of the Form I-9, which employers should begin using effective August 1, 2023, but have until November to comply.  Read more about the new changes to the Form I-9 here.