On July 25, 2023, the U.S. Department of Homeland Security (DHS) published a notice regarding alternative procedures for the review of Form I-9 identity and employment eligibility documents. The new alternative procedures will allow:
- Employers who hired employees remotely during the COVID-19 Flexibilities period between
March 20, 2020 and July 31, 2023 and virtually completed and examined Form I-9 and acceptable documents AND WERE ENROLLED IN E-VERIFY may elect alternative procedures to examine documents for those specific employees via live video starting August 1, 2023, which will satisfy the requirement for in-person physical examination of documents by the August 30, 2023 deadline.
- Employers who hired employees remotely and virtually completed and examined I-9 documents AND WERE NOT ENROLLED IN E-VERIFY during the COVID-19 Flexibilities Period must complete the requirements for in-person physical examination of I-9 documents by the August 30, 2023 deadline.
- An employer (or an authorized representative acting on behalf of the employer, such as a third-party vendor) who is enrolled in the E-Verify program, and completed all required E-Verify training, and is in good standing in E-Verify is qualified to apply the alternative procedures and are designated as a “qualified employer.”
- New E-Verify employers and any users who manage and create E-Verify cases must complete an E-Verify tutorial that includes fraud awareness and anti-discrimination training. The tutorial is free and accessible to any users who manage and create E-Verify cases as part of the E-Verify enrollment process.
- Employers and authorized representatives are not required to be document experts and must accept documents that reasonably appear genuine and relate to the person presenting them.
(See: https://www.uscis.gov/i-9-central/form-i-9-acceptable-documents/examining-documents)
- Qualified employers are not required to use the alternative procedures but may choose to do so if they want to continue hiring employees remotely as of August 1, 2023.
- Within three business days of an employee’s first day of employment, a “qualified employer” or authorized representative who elects to use the alternative procedure must comply with the following:
- Examine copies (front and back, if the document is two-sided) of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
- E-Verify participants must have live video capabilities to conduct a live video interaction with the employee presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must first transmit a copy of the document(s) to the employer (per Step 1 above) and then present the same document(s) during the live video interaction;
- Indicate on Form I-9, by completing the Additional Information box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable. (Note: If you use the current Form I-9 (version 10/21/19), you must enter “Alternative Procedure” in the box. If you use the revised Form I-9 (version 8/1/23), you must check the box within the Additional Information box.)
- Qualified employers must retain with the I-9 record clear and legible copies of all Acceptable Documents from Lists A, B, and C (front and back, if the document is two-sided) presented by the employee seeking to establish identity and employment eligibility for the Form I-9 through the alternate procedures. All documents examined in paper or electronic format must be retained for as long as the employee works for the employer for a specified period after employment has ended that is consistent with applicable regulations.
- Note: If the employer’s company policy regarding retention of I-9 documentation stipulates that copies are not retained, an employer may continue with that practice only for in-person hiring and examination of the I-9 documentation presented by the employee;
- In the event of an I-9 audit or investigation by a relevant federal government official, make available copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.
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- A qualified employer may elect to offer the alternative procedure for remote hires only and must continue the physical examination of I-9 documents for employees who work onsite or in a hybrid capacity, provided the employer does so consistently for all employees at that site, without discrimination. Employers may not discriminate against employees because of their citizenship, immigration status, race, color, religion, sex (including pregnancy), gender identity, sexual orientation, national origin, age, disability, or genetic information.
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- It is important for employers to be consistent with company policies regarding Form I-9 and retention of documentation related to using the alternative procedures and in-person examination procedures!
According to the USCIS website, the revised Form I-9 (version 8/1/23) will be published on August 1, 2023. Employers may use the current Form I-9 (version 10/21/19) through October 31, 2023. Beginning November 1, 2023, all employers must use the new Form I-9. The I-9 requirements, including ensuring continuous work authorization of all employees through extensions and reverifications, are still in place! The revised Form I-9 includes the following changes:
- 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 re-verification 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;
- Reduces Form instructions from 15 pages to 8 pages; and
- Includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination.
Below are links to the new I-9 Form and the E-Verify steps to follow on how qualified employers may participate in the DHS-approved alternative procedures for remote examination of Form I-9 documents:
- USCIS To Publish Revised Form I-9 | USCIS
- New Form I‑9; Notice Published Allowing E-Verify Employers to Remotely Examine Form I‑9 Documents (e-verify.gov)
References:
federalregister.gov (July 25, 2023)
globalimmigrationblog.com JacksonLewis (July 21, 2023)
https://guidepostsolutions.com (July 26, 2023)