With the end of the COVID-19 public health emergency, the Department of Homeland Security (DHS) previously announced that employers must complete in-person physical document inspections for employees whose documents were inspected remotely during the temporary flexibilities by August 30, 2023. However, on July 25, 2023, DHS amended the Form I-9 regulations to create a framework under which optional alternatives to the in-person physical document examination could be authorized and issued a rule creating the first alternative procedure.
Under the prior regulations, employers were required to physically examine original documents from the employee to assess the employee’s identity and employment authorization within three business days after the first day of employment. Under the newly authorized alternative procedure, a qualified employer may examine copies of Form I-9 documents, followed by a live video interaction with the employee, to determine that the documentation reasonably appears to be genuine and related to the individual. The employee must first transmit copies of the documents to the employer and then present the same documents during the live video interaction. The employer is required to maintain clear and legible copies of the documents.
The new alternative procedure is available only to employers who are participants in good standing in E-Verify, which means an employer enrolled and in compliance with all requirements of the E-Verify program, and all hiring sites in the U.S. using the alternative procedure must be enrolled in E-Verify.
Importantly, qualified employers that were enrolled in E-Verify during the COVID-19 temporary flexibilities (March 20, 2020, to July 31, 2023) may use the new alternative procedure to satisfy the physical document examination requirement by August 30, 2023, if an E-Verify case was created for the employee at the time of hire. Employers who were not enrolled in E-Verify at the time they initially performed a remote inspection of employee documents under the temporary flexibilities may not use the alternative procedure to meet the physical inspection requirement.
The U.S. Citizenship and Immigration Services (USCIS) will publish a revised version of Form I-9, Employment Eligibility Verification effective August 1, 2023, which will include a checkbox for employers enrolled in E-Verify to indicate they remotely examined identity and employment authorization documents using the alternative procedure authorized by DHS.
The revised Form I-9:
Reduces Sections 1 and 2 to a single-sided sheet;
Is designed to be a fillable form on tablets and mobile devices;
Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;
Moves Section 3, Reverification and Rehire, to a standalone supplement that employers can print if or when rehire occurs or reverification is required;
Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation; and
Reduces Form instructions from 15 pages to 8 pages.
Employers can use the current Form I-9 (edition date 10/21/19) through October 31, 2023. Starting Nov. 1, 2023, all employers must use the new edition.