For example, an employer cannot inconsistently physically inspect documents for some on-site or hybrid workers and remotely verify documents for other on-site or hybrid workers. 

On July 21, 2023, the Department of Homeland Security (DHS) announced both the publication of a new Form I-9 and the authorization of an optional, alternative procedure to the in-person, physical examination of documents presented by individuals seeking to establish identity and employment authorization for the purpose of completing Form I-9. The new form and alternative procedure will be available August 1.

The alternative procedure is available only to employers who are participants in good standing with E-Verify. Employers not enrolled in E-Verify must continue to abide by the physical document inspection requirement in completing Form I-9 for their employees.

In addition to authorizing a remote verification option, the new DHS rule exempts employers who were already enrolled in E-Verify before using remote examination―pursuant to Immigration and Customs Enforcement’s (ICE) COVID-19 flexibility policy―from the physical examination requirement in place for other employers. As a reminder, pursuant to ICE’s earlier announcement, employers are required to complete physical reinspection of every employee’s Form I-9 documents no later than August 30. Further information on that announcement and best practices for conducting physical reinspection are detailed in our earlier Alert.

Employers Qualified to Use the Alternative Procedure

At this time, the alternative procedure is available only to qualified employers, meaning those employers who are participants in good standing with E-Verify. A participant in good standing is an employer that has (i) enrolled in E-Verify for all hiring sites in the United States that use the alternative procedure; (ii) is in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and (iii) continues to be a participant in good standing with E-Verify at any time during which the employer uses the alternative procedure.

Document Retention

Qualified employers who choose to use the alternative procedure must retain a clear and legible copy of all documents presented by the employee seeking to establish identity and employment eligibility for Form I-9 under the alternative procedure. Retained document copies allow DHS to assess the documents that were presented to, and remotely examined by, the employer in the event of an audit, and help determine whether the documents examined by the employer reasonably appeared to be genuine and related to the employee, that the employer has not discriminated against employees, and that the employer has complied with other Form I-9 requirements as required by statute.

Training

Employers who enroll in E-Verify and any users who manage and create E-Verify cases must complete a tutorial that includes fraud awareness and anti-discrimination training. The tutorial is free and accessible to any users who manage and create cases, as part of the E-Verify enrollment process. The anti-discrimination training provides an overview of how to avoid discrimination in the Form I-9 and E-Verify processes, such as by requesting additional, different or specific Form I-9 documents or rejecting valid documentation because of an employee’s citizenship, immigration status or national origin. The fraud awareness training provides an overview of fraud indicators in identity and employment eligibility documentation and describes how an employer can examine Form I-9 documentation at various angles to help identify common document anomalies. Employers can do this as part of a physical examination process or a remote examination process.

What Does the Alternative Procedure Entail?

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:

1. 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;
2. 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;
3. Indicate on the Form 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;
4. Retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back if the documentation is two-sided); and
5. In the event of a Form 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 examination in connection with the employment eligibility verification process.

The final rule also emphasizes that employers making consistent use of the alternative procedure at “all hiring sites” must use it for all employees at the hiring site unless the employer only uses the remote verification procedure to onboard fully remote employees. In that situation, the employer could (1) remotely inspect and verify the new hire’s documents and (2) continue to physically inspect the documents for any on-site or hybrid employees at the same hiring site. Nonetheless, if the employer elects to engage in this bifurcated verification process for new hires, the employer must be consistent across the board. For example, an employer cannot inconsistently physically inspect documents for some on-site or hybrid workers and remotely verify documents for other on-site or hybrid workers. If this happens, an employer may expose themselves to potential discrimination claims under the Immigration and Nationality Act concerning documentary abuse allegations, according to the final rule.

For More Information

If you have any questions about this Alert, please contact Lisa Spiegel, Ted J. Chiappari, M. Alejandra Vargas, any of the attorneys in our Immigration Law Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.