United States - Health & Safety (2024)

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The I-9 employment verification process is taking a giant stepinto the 21^st Century making onboarding remote hires awee bit easier for many U.S. employers. This new alternativeprocess will take effect on August 1, 2023, in conjunction with theimplementation of a new version of the I-9, Employment Eligibility Verificationform.

Form I-9 Reengineered

In March 2022, the Department of Homeland Security (DHS), U.S.Citizenship and Immigration Services (USCIS) issued a regulatory noticeand previewed a newly designed version of the Form I-9. Then onJuly 25, 2023, the DHS and USCIS announced the newI-9 (Rev. 08/01/23) will be available on August 1, 2023. Thecurrent version (Rev. 10/21/19) can be used through October 31,2023, and all employers will be required to use the new versionfrom November 1, 2023.

The new version will incorporate the following changes:

• Reduces Sections 1 and 2 from 2 pages to a single-sided page.No previous fields were removed but some fields were merged;
• Section 1 Preparer/Translator Certification is relocated to aseparate, standalone supplement (A) that only requires completionwhen necessary;
• Section 3 Reverification and Rehire is moved to a separate,standalone supplement (B) that employers need only print andcomplete when utilizing for reverification an employee's workauthorization or rehiring an employee with an existing I-9;
• Revises the Lists of Acceptable Documents page to include someacceptable receipts as well as guidance and links to I-9 Central containing information onautomatic extensions of employment authorizationdocumentation;
• Reduces the Form I-9 instructions from 15 pages to 8 pages.However, the comprehensive guide, Handbook forEmployers M-274, remains a mere 140 pages whenprinted;
• Added a box (in Sections 2 and 3) that eligible employers mustcheck if the employee's Form I-9 documentation was examinedunder a DHS-authorized alternative procedure rather than viaphysical examination. If an employer uses the 2019 version of theI-9 and elects to use the new alternative remote inspectionprocedure (as explained below), the employer must enter"alternative procedure" in the Additional Informationfield of Section 2 of Form I-9; and
• The I-9 is now configured as form fillable on tablets andmobile devices.

To summarize, Employers may utilize this new version for newlycompleted Forms I-9 from August 1, 2023, but may also continueusing the current version (Rev. 10/21/19) until October 31, 2023.Employers are required to complete a Form I-9 for all employeeshired after November 6, 1986, and retain all completed I-9s (alongwith supplements and copies of relevant identity and employmentauthorization documents) for active employees. Upon termination ofemployment, employers must retain the I-9 for the laterof one (1) year after termination or three (3) yearsafter the date of hire.

New Alternative Permits Remote Examination of I-9 Documents for"Qualified" Employers

As we detailed in previous posts, during theCOVID-19 pandemic, DHS permitted special "flexibilities"temporarily permitting remote and virtual review of identity andemployment eligibility documents during the I-9 process.Traditionally, regulations and I-9 instructions require employersto physically examine the documentation presented by newly hiredemployees to ensure the documents reasonably appear to be genuineand relate to the employee. Now, as the COVID flexibilities arephased out, DHS is implementing apermanent alternative to physical inspection ofI-9 documents. This new remote inspection option is implemented bya final rule takingeffect on August 1, 2023. However, as we outline below, there is acatch (or two).

The New Alternative - Examination of Documents Via LiveVideo

DHS has created an alternative to employers' traditionalrequirement to physically examine the employee's original I-9documents. Within three (3) business days of an employee'sfirst day of employment, a qualified employer (oran authorized representative acting on such an employer'sbehalf) may now do all of the following:

1. Ensure the employee transmits a copy of the I-9 document(s)they wish to present for identity and work authorization. If adocument is two-sided, a copy of both the front and backside of thedocument must be transmitted;
2. Examine copies of Form I-9 documents (front and back, if thedocument is two-sided) or an acceptable receipt to ensure that thedocumentation presented reasonably appears to be genuine;
3. Conduct a live video interaction (e.g., Zoom, Teams, FaceTime,Skype, WebEx or a similar platform) with the employee presentingthe document(s) to ensure that the documentation reasonably appearsto be genuine and related to the employee;
4. Indicate on the Form I-9, by completing the corresponding box,that an alternative procedure was used to examine documentation tocomplete Section 2 or Section 3 for reverification, asapplicable;
5. As indicated above, the new edition of the Form I-9 (Rev.08/01/23) will contain a box next to language stating "Checkhere if you used an alternative procedure authorized by DHS toexamine documents." For those using the current version (Rev.10/21/19) until October 31, 2023, the employer must notate"alternative procedure" in the Additional Informationfield in Section 2;
6. The employer must retain a clear and legible copy of thedocumentation (front and back if two-sided) presented by theemployee; and
7. In the event of a Form I-9 audit or investigation by a relevantfederal agency, make available, along with the Form I-9, the clearand legible copies of the identity and employment authorizationdocumentation presented by the employee.

The Catch - Only Available to Qualified E-Verify Employers

This alternative video inspection procedure is only available to"qualified employers" who are participating in E-Verifyand are in good standing. The Rule defines "goodstanding" as:

[A]n employer that has enrolled in E-Verify with respect to allhiring sites in the United States that use the alternativeprocedure; is in compliance with all requirements of the E-Verifyprogram, including but not limited to verifying the employmenteligibility of newly hired employees in the United States; andcontinues to be a participant in good standing in E-Verify at anytime during which the employer uses the alternative procedure.

Going forward, newly enrolled E-Verify Employers will also beeligible to use this alternative inspection procedure.

Sync-up with COVID-19 Flexibilities Process

As we explained in our previous post, DHSannounced the phase-out, as of July 31, 2023, of the COVID-19"flexibilities" relating to physical inspection ofidentity and employment eligibility documents, temporarilypermitting remote and virtual review of such documents. Employersare required to complete physical inspection of any such documentsand update their I-9s no later than August 30, 2023.

Once this new alternative takes effect on August 1st, DHS willpermit qualified E-Verify employers to utilize the alternativevideo inspection process to satisfy the COVID-19 flexibilityphysical inspection requirement provided that:

1. The employer was enrolled in E-Verify at the time it performeda remote examination of the I-9 documentation while using theCOVID-19 flexibilities;
2. An E-Verify case was created for the subject employee; and
3. The employer performed the remote inspection between March 20,2023 and July 31, 2023.

Key Takeaways and Considerations

• As indicated above, the new remote alternative is availablefrom August 1, 2023, and qualified employers may use the processfor employees hired on after August 1^st.
• Employers may not use this remote document inspection processfor employees hired before August 1^st unless they areutilizing same to satisfy the special examination requirementsassociated with the DHS COVID-19 flexibilities. In other words, ifan employer was not enrolled in E-Verify during the COVID-19flexibilities period, between March 20, 2020 and July 31, 2023, anddid not create an E-Verify cases for remotely inspected employees,then the employer cannot utilize this alternative procedure and itmust complete in-person physical document inspection of I-9documents by the August 30, 2023 deadline. See our previous post forrelated employer obligations and best practices.
• DHS indicated this alternative procedure will not expire but itmay amend, suspend or cancel the procedure if deemed necessary toaddress a public health emergency or other nationalemergencies.
• A qualified employer is not required to adopt this alternativeand can continue to physically examine I-9 documents.
• Employers may choose to offer this alternative solely to remotehires while continuing to conduct physical examination foremployees hired onsite. However, the employer must implement thepractice consistently and may not adopt a practice for adiscriminatory purpose or treat certain employees differently.
• Employees who are unable or unwilling to submit documentationvia the alternative procedure, may request an employer to conduct aphysical examination of their I-9 documents. Employers must honorsuch requests.

This new alternative is welcome news to many employers who havestruggled with the archaic I-9 verification rules when onboardingremote hires. However, since I-9 paperwork fines can currently tickup to $2,701 per violation, it is critical that employers electingto utilize this new alternative strictly comply with the remoteverification procedures and the terms and conditions associatedwith E-Verify enrollment. As DHS reminds employers in theircomments to this rule, "[a]ll employers are subject to auditsand investigations. DHS will monitor and evaluate data andinformation from ICE audits conducted to assess any measurableimpacts to system integrity as between the employers that use thealternative procedure and those that continue with physicaldocument inspection."

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circ*mstances.