Form I-9 In-Person Document Inspection Deadline of August 30, 2023, Quickly Approaching: Remote Alternative Available for Some Employers
|As many employers are aware, during the COVID-19 pandemic, the Department of Homeland Security and U.S. Immigration and Customs Enforcement (collectively, DHS) provided employers with flexibility in complying with the requirements related to Form I-9, Employment Eligibility Verification. Specifically, DHS allowed employers to remotely inspect copies of the identity and employment eligibility documents (typically, passports, driver’s licenses, etc.) needed to complete Section 2 of Form I-9. DHS recognized that this flexibility was important because many employees were working remotely during the pandemic.
Then, on May 5, 2023, with the pandemic nearly declared over, DHS announced that the flexibility to remotely inspect these documents would end on July 31, 2023. DHS further stated that, by August 30, 2023, employers needed to begin completing in-person physical document inspections for new hires AND complete in-person physical document inspections for all employees who had been hired and whose documents had been inspected remotely under the COVID-19 flexibilities.
Many employers immediately began scrambling to put in place processes that would allow them to complete in-person physical inspections of, in some cases, the identification documents of hundreds of employees the employers hired over the course of the pandemic to work remotely in locations throughout the U.S. These processes included hiring notaries throughout the U.S. willing to complete in-person document inspections for employees.
However, some employers – specifically, those employers who are users of E-Verify in good standing – may now breathe a small sigh of relief.
On July 25, 2023, DHS announced that certain employers that meet four (4) specific requirements around E-Verify may choose an alternative procedure to remotely conduct document inspections for new employees and for those employees who had been hired and whose documents had been inspected remotely under the COVID-19 flexibilities. DHS also released a new Form I-9 that reflects the alternative inspection procedure, as well as other changes.
To qualify for the alternative procedures, the employer must have:
(1) performed remote inspection of an employee’s documents between March 20, 2020 and July 31, 2023;
(2) been enrolled in E-Verify at the time they completed the Form I-9 for that employee;
(3) created a case in E-Verify for that employee (except for reverification); and
(4) be currently enrolled in and continue to participate in E-Verify. To the extent an employer chooses to use the alternative procedure, it must do so for all employees working at that site.
The alternative procedure consists of:
(1) the employee transmitting a copy of the Form I-9 documents to the employer (employers should ensure the employee sends these documents in a manner that safeguards any sensitive personal identifiable information in these documents, for example, using encrypted email);
(2) the employer examining copies (front and back, if two-sided) of the documents or an acceptable receipt to ensure that the documents presented reasonably appear to be genuine and relate to the employee;
(3) the employer conducting a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and relates to the individual;
(4) the employee presenting the same documents to the employer during the live video interaction;
(5) the employer indicating that the alternative procedure was used on the Form I-9; and
(6) the employer retaining a clear and legible copy of the documents (front and back, if two-sided).
Importantly, employers who are not users of E-Verify in good standing should immediately begin completing in-person physical document inspections for new hires as well as for all employees who were previously hired and whose documents had been inspected remotely under the COVID-19 flexibilities. This work needs to be completed by August 30, 2023.
Employers with any questions regarding the Form I-9 process and what they should do should reach out to legal counsel. In addition, the USCIS website, at https://www.uscis.gov/i-9-central, contains helpful guidance and FAQs on both the physical inspection process and the alternative procedure.