The Department of Homeland Security (DHS) published a final rule on July 25, 2023, implementing a pilot program for remote I-9 processing by “eligible employers” for the indefinite future. In so doing, DHS headed the recommendations of most employer organizations who commented on the proposed rule and rejected the argument that in-person inspection of individuals and their documents was required under the Immigration Reform and Control Act of 1986. DHS determined that because the “in-person” inspection requirement derived from the 1991 implementing regulations, the agency could amend the rule in its discretion without Congressional authorization provided the amended rule provided adequate controls for fraud. DHS concluded based on the prevalence of secure, live-video communication platforms, it made sense to authorize such interactions for I-9 employee verification purposes – with the additional security offered by the E-Verify process to confirm employee identity and work eligibility.
The final rule exempts employers who were enrolled in good standing in E-Verify during the COVID I-9 Flexibility period (March 20, 2023 – July 31, 2023) from performing in-person document reviews of individuals who were hired remotely and who have not yet returned to work at the employer’s worksite provided an E-Verify case was created for each such employee. As of this writing it is unknown whether DHS is prepared to waive the 3-day secondary inspection requirement for remote hires who returned to the worksite prior to the expiration of the COVID I-9 Flexibility period.
Employers Qualifying for Remote I-9 Verification Starting August 1, 2023
An “employer participant in good standing in E-Verify” is defined as an employer that (a) has enrolled in E-Verify with respect to all hiring sites in the United States where it uses the remote alternative I-9 verification procedure, (b) is in compliance with all requirements in the E-Verify Memorandum of Understanding, and (c) continues to be enrolled and a participant in good standing in E-Verify at all times during which the employer uses the alternative, remote I-9 verification procedure. (We recommend that employers conduct an E-Verify compliance assessment on a routine basis and that they document all communications with E-Verify regarding corrective actions. Failure to maintain routine E-Verify compliance monitoring could result in government investigation and endanger an employer’s eligibility for participation in the remote verification protocol.
Prohibition on Selective/Discriminatory Use of Remote I-9 Verification
A qualified employer does not need to use the alternative procedure, but if a qualified employer chooses to offer the alternative procedure to some employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site. Once enrolled in E-Verify, employers will be required to create a case for all newly hired employees, whether or not the alternative procedure is used, at each hiring site that is enrolled in E-Verify, in accordance with the E-Verify Memorandum of Understanding
CAVEAT: A qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic. Under no circumstances can employers unlawfully discriminate, such as by deciding who is eligible for the alternative procedure based on a protected characteristic.
Employees Retain the Right to Insist on In-Person Document Verification
Qualified employers must allow employees who are unable or unwilling to submit documentation using the alternative procedure to submit documentation for physical examination. Nothing in the alternative procedure prevents an employer from physically examining documents when requested to do so by an employee.
Security Level for Live Video Verification
Qualified employers seeking to complete the I-9 verification process through video conferencing must first obtain clear and legible photocopies of the documents the employee elects to present for Section 2 verification and must ensure that the video conferencing platform will provide an equivalent level of security compared to physical document inspection.
Employers must ensure that personnel charged with conducting remote, live-video I-9 verification and those charged with managing and creating E-Verify cases have successfully completed a free, E-Verify tutorial that includes fraud awareness and anti-discrimination training. (DHS has not yet released the fraud training module. We will report on its contents once published. It is unknown whether the new fraud training module will expand upon the document inspection instruction contained in the I-9 Employer Handbook (M274). Look for additional reporting and analysis regarding the new E-Verify fraud training on this site.)
New Reporting Requirements
The final rule reports that DHS will release a new I-9 form on August 1, 2023. The new version reportedly will be formatted to facilitate completion on mobile devices – a welcome improvement, particularly for remote completion. DHS also has condensed the instructions portion of the I-9 form from 15 to 7 pages and has revised the List of Acceptable Documents to include Receipt documents and hyperlinks to DHS websites containing lists of additional Acceptable Documents that may be added from time to time. Both the employee and employer sections will appear on Page 1 of the new version. Employers participating in remote verification will be required to check the box verifying use of the alternative procedure on the face of the form. Employers utilizing remote verification may continue to use the current version of the form through October 31, 2023, but are required to report their use of remote verification in the blank information field located in Section 2 of the old form. On November 1, 2023, all employers must begin using the August 1, 2023, version of the I-9 form. Look for additional reporting and analysis on use of the new I-9 form on this site.