Form I-9 Updates:
- Optional Alternative Remote Examination Procedure for Eligible E-Verify Employers Starts August 1, 2023;
- Re-Examination Requirements Due to End of COVID-19 Flexibilities Must Be Completed by August 30, 2023; and
- New Form I-9 Will Be Issued August 1, 2023.
The U.S. Department of Homeland Security (DHS) has announced an “optional alternative procedure” that will enable E-Verify employers to remotely examine I-9 documents starting August 1, 2023.
To be eligible, an employer must be enrolled in E-Verify and in good standing with its requirements. For those who are not familiar with E-Verify, it is a free internet-based system run by the federal government that compares information provided by workers on their Form I-9 with DHS and Social Security Administration (SSA) records to verify the worker’s eligibility for employment. According to DHS, an E-Verify employer in “good standing” is one that that “has enrolled in E-Verify with respect to all hiring sites in the United States that use the alternative procedure; 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 continues to be a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure.” All employers may participate in E-Verify; some employers are required to do so as a matter of government contracts. Use of E-Verify is not a substitute for completing the Form I-9; employers who participate in E-Verify must still comply with all Form I-9 requirements.
Under the optional alternative procedure, an eligible E-Verify employer may use remote examination for all workers. Or, it may use remote examination for all remote workers but examine on-site worker documents in-person physically per standard protocol, so long as the decision to take this hybrid approach is not discriminatory – meaning, that is not based on a protected characteristic such as citizenship, immigration status, or national origin. Eligible E-Verify employers are not required to use the alternative; they may, instead, conduct in-person physical examination of documents for all workers.
There are five steps to the optional alternative procedure. Within 3 days of the first day of employment, the eligible E-Verify employer (or its authorized representative) must: (1) examine copies (front and back if two-sided) of the Form I-9 List A, B, or C documents presented by the worker to verify their identity and eligibility to work in the United States, and assess whether they reasonably appear genuine; (2) Conduct a live video session with the worker providing the documents to ensure, again, that they appear genuine and that they reasonably relate to the worker (note that the worker must first send the documents to the employer and also present them to the employer during the video session); (3) Indicate on the Form I-9 that the alternative procedure was used; (4) retain clear and legible copies of all documentation used to complete the Form I-9 (front and back if two sided), and (5) if the worker is a new hire, create an E-Verify case. In the event of an I-9 audit or governmental investigation, these “clear and legible” copies must be made available within the time required. For more information about this process, see the instructions on the USCIS website, located here https://www.uscis.gov/i-9-central/form-i-9-related-news/new-form-i-9-notice-published-allowing-e-verify-employers-to-remotely-examine-form-i-9-documents.
During the pandemic, DHS allowed a different, temporary procedure for remote examination in recognition of lockdowns, physical distancing requirements, and the abrupt switch, for many, to remote work (referred to as COVID-19 temporary flexibilities). On May 4, 2023, Immigration and Customs Enforcement (ICE) announced that the COVID-19 temporary flexibilities would end July 31, 2023, and that all employers who completed the I-9 process during the March 20, 2020 - July 31, 2023 timeframe using the COVID-19 temporary flexibilities must complete in-person physical examination of I-9 documents for all workers processed remotely during that timeframe no later than August 30, 2023.
However, pursuant to this new rule, starting August 1, 2023, employers who participated in good standing in E-Verify during the time period when the COVID-19 flexibilities were in effect (March 20, 2020 - July 31, 2023), and who opened E-Verify cases for each worker remotely examined during that time frame, may use the optional alternative procedures (following all steps and retaining all required documents) to complete the reexamination requirement in lieu of in-person physical examination for those workers. All other employers are required to complete the reexamination requirement using the standard in-person physical examination process.
Finally, employers should be aware that on August 1, 2023, DHS will issue a new version Form I-9, simplified for mobile use. Employers may start using this form on August 1, 2023, or may continue to use the current form (2019 edition) until October 31, 2023. All employers must use the August 1, 2023, edition of the form starting November 1, 2023.
E-Verify employers should note that the new form will have a box to indicate use of the optional alternative procedure; if they continue to use the current form, use of the optional alternative procedure should be noted in the "additional information" section.
The optional alternative procedure was formalized through publication of a final rule and notice in the Federal Register on July 25, 2023. These documents may be found here https://www.federalregister.gov/documents/2023/07/25/2023-15532/optional-alternatives-to-the-physical-document-examination-associated-with-employment-eligibility and here https://www.federalregister.gov/documents/2023/07/25/2023-15533/optional-alternative-1-to-the-physical-document-examination-associated-with-employment-eligibility.
More information about these updates, including instructions for completing Form I-9 and enrolling in E-Verify may be found here: https://www.uscis.gov/i-9-central.
For more information about these issues and other employment concerns, contact Melissa Calhoon Jones, co-chair of the employment and labor group, or any member of the employment and labor law group.
This has been prepared by Tydings for informational purposes only and does not constitute legal advice.