USCIS Provides Alternative Procedure for Completion of Form I-9 - Permanent Virtual Verification
On July 21, the U.S. Citizenship and Immigration Services (USCIS) announced it will release a new I-9 on Aug. 1, 2023. Employers may continue to use the current version of the I-9; starting Nov. 1, the use of the new I-9 will be required.
The agency made significant changes to the I-9 and instructions, including a checkbox to indicate that an employee’s Form I-9 documentation was examined using a new authorized alternative procedure. The USCIS made the following updates to the I-9:
Reduced Sections 1 and 2 to a single-sided sheet while maintaining all previous fields
Moved the preparer/translator certification to a separate standalone supplement
Moved the reverification/rehire section to a separate standalone supplement
Edited the employee’s attestation field and provided additional clarification to mitigate errors by employees
Ensured the I-9 can be filled out on tablets and mobile devices
Removed certain features to ensure the form can be downloaded easily
Removed the requirement to use “N/A” in certain fields
Updated the notice regarding avoiding discrimination in the I-9 process
Revised the list of acceptable documents to include some acceptable receipts and provided additional guidance and links regarding automatic extensions of employment authorization documents
Added a box eligible employers must check if the employee’s I-9 documentation was examined under a new authorized procedure rather than physical examination
In addition, the U.S. Immigration and Customs Enforcement (ICE) issued a final rule that allows it to create a process for employers to implement alternative document examination procedures, such as remote document examination.
On May 4, DHS announced an end to the temporary flexibility permitting Form I-9 documents to be inspected remotely. Under the May 4 rule, all employers would have had 30 days to reach compliance with Form I-9 physical examination requirements after the COVID-19 flexibilities sunset on July 31, 2023.
Under the new July 21 rule, employers who participated in E-Verify and created E-Verify cases for employees during the COVID-19 flexibility period are excused from physical re-inspection and re-verification requirements for their existing workforce. Although these employers are not exempt from re-verification requirements altogether, they can use the remote alternative procedure to satisfy the required physical examination of the employee’s documents.
All employers that use the remote alternative procedure instead of physical examination must add “alternative procedure” with the date of examination (i.e., the new date the employer performed a live video interaction) to the Section 2 Additional Information field on the existing Form I-9 or in Section 3, as appropriate.
The proposed rule notes that the alternative procedure will involve the following:
Within three business days of an employee’s first day of employment, a qualified employer (or an authorized representative acting on such an employer’s behalf, such as a third-party vendor) who chooses to use the alternative procedure must do 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
Conduct a live video interaction with the individual 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 the I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable
Retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back if the documentation is two-sided)
In the event of an I-9 audit or investigation by a relevant federal government official, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process
Qualified employers may use the alternative procedure starting on Aug. 1, 2023. Employers not enrolled in E-Verify may do so after becoming a participant in good standing in E-Verify by enrolling and receiving the required training.
Employers That Are Not Enrolled in E-Verify
Employers that do not participate in E-Verify have until Aug. 30, 2023, as previously announced, to perform all required physical examinations of identity and employment authorization documents for employees hired on or after March 20, 2020, based on virtual or remote examinations under the COVID-19 temporary flexibilities.
DHS announced that U.S. Immigration and Customs Enforcement generally will not focus its limited enforcement resources on Form I-9 verification violations for failing to complete physical document examination by Aug. 30, 2023. According to DHS, enforcement of the physical examination requirements will not be a priority where an employer is otherwise compliant with the law and regulation under the COVID-19 flexibilities and can show that it has taken timely steps to complete physical document examination within a reasonable period.
What Is E-Verify?
E-Verify is a free, user-friendly web-based system operated by DHS in partnership with the Social Security Administration. The system enables participating employers to electronically verify the employment eligibility of their employees. Current regulations for the Form I-9 require employers to physically examine, within three business days after the first day of employment, the Form I-9 documentation presented by new employees to ensure that the documentation appears to be genuine and related to the individual who presents it.
DHS’ July 21 rule amends the physical examination requirement to allow a remote alternative to the physical examination of Form I-9 documentation for interested, qualifying employers. While the new rule provides a remote inspection option, it does not mandate the use of the remote option for any employers. Qualifying employers under the new rule may continue to conduct physical examinations.
But if a qualified employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site. A qualified employer may, however, choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work on-site 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 their citizenship, immigration status or national origin. Qualified employers who use the remote alternative procedure with any employee must retain a clear and legible copy of all documents presented by the employee seeking to establish identity and employment eligibility for the Form I-9.
Employers that are not enrolled in E-Verify but wish to utilize the remote procedure going forward may enroll in E-Verify.
The introduction of permanent virtual verification marks a significant milestone in the evolution of employment eligibility verification, which takes in consideration technological advances for a modern workforce. By harnessing the power of technology, employers will be able to verify the identity and employment verification documents in a secure and efficient manner. Permanent virtual verification eliminates geographical barriers, enhances efficiency, and ensures compliance with relevant immigration and employment regulations.