Employers May Remotely Examine Employees’ I-9 Documents

On May 5, 2023, U.S. Immigration and Customs Enforcement officially stated that employers must complete in-person physical document inspections for employees whose documents were inspected remotely during the COVID-19 pandemic. We recently covered an overview of the announcement in May, along with a recap of the sequence of events that preceded it. However, the need for Form I-9 compliance to meet the needs of hiring remote employees did not stop there.

The Department of Homeland Security (DHS) announced a final rule on July 21, 2023, declaring an end to temporary flexibilities specific to COVID-19 ending July 31, 2023. However, this announcement also provides other alternatives available starting August 1, 2023. DHS published a document authorizing employers enrolled in E-Verify to examine employees’ identity and authorization documents remotely. That’s good news for some employers who find their workforce increasingly remote at varied locations.

Remote Employee Document Inspection With E-Verify

This new authorization allows employers who use E-Verify to verify identity and authorization forms through a live video call. Citizenship and Immigration Services (USCIS) also announced a new version of the Form I-9 to work alongside DHS’s permission for remotely examining employees’ identity and authorization documents. The new form contains a checkable box for employers enrolled in E-Verify to confirm remote examination of identity and employment authorization documents:

• Employers can use the new Form I-9 as of August 1, 2023. Employers must use the new Form I-9 by November 1, 2023—the old Form I-9 dated “10/21/2019” will be invalid and obsolete.
• Using this Form I-9 dated “08/01/2023,” employers can remotely examine employees’ documents, provided they are enrolled in E-Verify and comply with correlating DHS guidelines. Once enrolled in E-Verify:
  • Employers can examine I-9 documents through a live video.
  • Using Form I-9 dated “08/01/2023”, employers inspecting documents remotely will check the “Additional Information” box. Any employers using Form I-9 dated “10/21/2019” through November 1, 2023, should instead write “Alternative Procedure” in the Additional Information field in Section 2.
  • Employers must also retain all copies of all I-9 documents that are examined remotely with the employees’ Form I-9

A New Simplified I-9 Process

Along with allowing employers enrolled in E-Verify to inspect documents remotely, a few other minor adjustments are intended to simplify the I-9 Form and the processes involved. Additionally, USCIS has:

• Reduced Sections 1 and 2 into a single sheet. No previous fields were removed. Multiple fields were merged into fewer fields, such as in the employer certification.
• Moved the Section 1 Preparer/Translator Certification area to a separate Supplement A that employers can use when necessary. This supplement provides three areas for current and future preparers and translators to complete as needed. Employers may attach additional supplements as needed.
• Moved Section 3, Reverification and Rehire, to a standalone Supplement B that employers can use for rehire or re-verification. This supplement provides four areas for current and subsequent re-verifications. Employers may also attach additional supplements as needed.
• Removed use of “alien authorized to work” in Section 1: This phrase is replaced with “noncitizen authorized to work” and clarifies the distinction between “noncitizen national” and “noncitizen authorized to work.”
• Made the new I-9 more mobile-friendly: This change ensures the form can be filled out on tablets and mobile devices by downloading it onto the device and opening it in the free Adobe Acrobat Reader app.
• Created an easier download process for the form: Certain features have been removed to ensure the form can easily be downloaded. This change also removes the requirement to enter N/A in specific fields.
• Improved guidance to the Lists of Acceptable Documents to include some acceptable receipts, guidance, and links to information on automatic extensions of employment authorization documentation.

To read more about these new changes, take a closer look at the official statement from DHS on July 21, 2023. If employers choose to participate in E-Verify for remote employee document inspection, we encourage consulting your legal counsel for compliance and legal advice regarding participation and any potential related changes to your hiring process.