Changes to DHS Form I-9 Allow Some Employers to Verify Employment Remotely
On August 1, 2023, United States Citizenship and Immigration Services (USCIS) issued a new Form I-9 (accessible here) in order to simplify the employee verification process. The updated Form is accompanied by a new rule that permits certain employers to examine an employee’s documents remotely. These changes come in response to public comment in the wake of the Department of Homeland Security’s (DHS) implementation of more flexible verification procedures during the COVID-19 pandemic. All employers may continue to use the old Form I-9 until October 31, 2023, after which use of the old Form will subject employers to penalties.
Who can Use the Remote Examination Procedure?
Remote examination of documents is only available to employers in good standing with E-Verify. There is no requirement that an employer examine documents remotely, but if they choose to offer this alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site. Employers can also choose to allow the alternative verification procedure for remote employees only, while requiring in-person examination of documents for all employees who work on-site or on a hybrid schedule.
As before, employers are prohibited from adopting any practice for a discriminatory purpose, which means that employers are not permitted to decide which hires are eligible for the alternative procedure based on a protected characteristic like citizenship or immigration status.
Employers who completed Forms remotely for personnel hired during the COVID-19 relaxed period have until August 31, 2023 to complete the inspection of documents. While that deadline is still in place, E-Verify employers in good standing can now complete this inspection remotely.
Process for Remote Verification
E-Verify employers in good standing may now verify a new hire’s eligibility for employment by remotely examining copies, including front and back, if applicable, of Form I-9 documents produced by the new hire to ensure that the documentation reasonably appears to be genuine. Employers may also examine an acceptable receipt for the application to replace a List A, B, or C document that was lost, stolen, or damaged or properly stamped arrival or departure portions of Form I-94 or so long as employment will last more than 3 days. Then, the employer must conduct a live video interaction with the individual presenting the documents. At that interaction, the new hire must again present the documents to ensure that the documentation reasonably appears to be genuine and related to the individual. The examination of the documents and the live video interaction must occur within 3 business days of the employee’s first day.
The employer may then indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable. The employer must then retain clear and legible copies of the documents for 3 years from the date of hire or 1 year from the employee’s last day, whichever is later, so that the documents can be made available in the event of a Form I-9 audit or investigation.
Impacts on Verification Integrity
DHS stated in the Federal Register that it “has no reason to believe that the alternative procedure described in this rule would result in an increased use of fraudulent documents as compared to a circumstance under which employers or their authorized representatives physically examine documents without confirming such documents or related information, receiving any training, or retaining copies of documents”. DHS plans to monitor and evaluate data and information from ICE’s Form I-9 audits conducted after the implementation of this alternative procedure to assess any measurable impacts to system integrity.
For more insight into the changes to Form I-9 and other USCIS developments, please feel free to contact any member of Elarbee Thompson’s Employment Law Practice Group.