On July 21, 2023, the Department of Homeland Security (DHS) announced a final rule in the Federal Register giving DHS the authority to approve alternative means by which employers can examine Form I-9 documentation once the COVID-19 Temporary Flexibilities end on July 31, 2023. In tandem with this announcement, DHS presented an approved alternative for certain employers to remotely inspect Form I-9 documentation in lieu of in-person physical inspection.
E-Verify Alternative to Physical Inspection
The alternative procedure to physical inspection is available only to qualified employers, meaning those who are participants in good standing in E-Verify. Employers who qualify to use the DHS' authorized alternative must confirm the identity and employment authorization of their newly-hired employees by using E-Verify to electronically compare information from the Form I-9 to records that are available to DHS. The alternative procedure also requires employers to conduct a live video interaction with the employee and create an E-Verify case if the employee is a new hire.
DHS does authorize qualified employers to offer the alternative procedure for remote hires only, while still continuing to apply physical examination procedures to all employees who work onsite or in hybrid capacity, so long as this option is not adopted for a discriminatory purpose or to treat employees differently based on their citizenship, national origin, or immigration status. If an employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, DHS requires that the employer must do so consistently for all employees at that site.
Employers who choose to use the alternative procedure are required by DHS to comply with document retention requirements by retaining "a clear and legible copy of all documents presented by the employee seeking to establish identity and employment eligibility for the Form I-9 under the alternative procedure."
Who can participate in the Alternative Procedure
Under the DHS rule, employers who (1) have been participating in E-Verify and (2) created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020 to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023 to satisfy the physical document examination requirement by Aug. 30, 2023.
Employers who were not enrolled in E-Verify during the COVID-19 flexibilities period must complete an in-person physical examination by Aug. 30, 2023. (Employers who are not already participating in E-Verify may wish to consider enrolling in the program.)
Revised Form I-9
Also, on August 1, 2023, U.S. Citizenship and Immigration Services will publish (www.uscis.gov) a revised version of Form I-9, Employment Eligibility Verification, which includes a checkbox to indicate that documents have been remotely examined in accordance with the DHS' authorized alternative. Employers can use the current Form I-9 (edition date 10/21/19) through Oct. 31, 2023; however, starting Nov. 1, 2023, all employers must use the new Form I-9.
A member of our Washington D.C.-based team, Patricia Lantzy is a highly skilled labor and employment attorney with almost 30 years of experience. Trish works with a wide range of clients, from individual executives and small businesses to the Fortune 500, on employment-related issues across the employee lifecycle, including recruiting, hiring, workplace harmony and leave issues, performance and discipline/discharge, corporate reorganizations and reductions in force.
Originally published by 25 July, 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.