July 2023 updates for Form I-9, Employment Eligibility Verification

United States Mobility: Immigration alert

Background and analysis

Pursuant to Section 274A of the Immigration and Nationality Act (INA), Form I-9 regulations require U.S. employers to physically inspect an employee’s identity and work authorization documents in-person, within three (3) business days after the first day of employment, to ensure that the documentation presented reasonably appears to be genuine and to relate to the individual who presents it. Throughout the COVID-19 pandemic, DHS offered Form I-9 flexibilities that allowed for employers to examine employees’ documents remotely (e.g., over video call, fax, or email), as opposed to in-person, and document “COVID-19” as the reason for physical examination delay on Form I-9. DHS later announced that COVID-19 related Form I-9 flexibilities would end 31 July 2023 and that employers would have until 30 August 2023 to reach compliance with Form I-9 requirements.

On 25 July 2023, DHS published final rule “Optional Alternatives to the Physical Document Examination Associated With Employment Eligibility Verification (Form I-9)” in response to the practical benefits of an optional alternative to these physical documentation examination procedures. Under the final rule, certain employers may examine identity and work authorization documents remotely.

DHS has limited participation in the optional alternatives to the physical document examination to employers participating in E-Verify, who are in good standing. Qualified employers are required to complete on-line training through E-Verify in order to participate.

Under the rule, document retention requirements have been expanded to include clear and legible copies of all documents presented for the Form I-9. The optional alternative to physical documentation examination requires employers to conduct a live video interaction with the employee after the employee has transmitted a copy of their document(s) to the employer to inspect the employee’s document(s), to ensure that the documentation presented reasonably appears to be genuine and to relate to the individual who presents it.

What the alternative procedure entails

Within three business days of an employee’s first day of employment, the employee must transmit a copy of Form I-9 documents to the employer to examine the copies (front and back if the document is two-sided). The employer must conduct a live video interaction during which the employee must present the same document(s) that were transmitted to the employer to ensure that the documentation transmitted reasonably appears to be genuine and related to the employee. The employer must indicate on the new version of the Form I-9, by checking the relevant box, that the alternative procedure was used to examine documentation. The employer must retain a clear and legible copy of the documentation (front and back if the document is two-sided) to be made available in the event of a Form I-9 audit by a federal government agency.

What this means

The alternative procedure will only be available to qualified employers that are in good standing in the E-Verify program as well as employers who have enrolled in E-Verify with respect to all hiring sites in the United States. Qualified employers must use E-Verify to create cases for all newly hired employees, regardless of whether the alternative procedure is used, at each hiring site that is enrolled in E-Verify. A qualified employer may continue to examine documents physically, instead of using the optional procedure, if they so choose.

However, if a qualified employer chooses to offer the alternative procedure for some employees at the E-Verify hiring site they must offer it to all employees at that site. A qualified employer may elect to use the alternative procedure for all remote hires only while continuing to apply the physical examination procedures to all employees who work on site or in a hybrid capacity, provided that the employer does not adopt such approach for discriminatory purposes.

Qualified employers may start using the alternative procedure on 1 August 2023 but may not apply the alternative procedure to employees hired before that date. Employers not currently registered E-Verify may start using the alternative procedure after becoming a participant in good standing in E-Verify, by enrolling and completing the required on-line training.