Get ready! The U.S. Citizenship and Immigration Services (USCIS) will be releasing new, revised Form I-9 documents tomorrow, but that’s not the only change coming for employers. On July 25, the Department of Homeland Security (DHS) published a new rule that provides an optional alternative procedure to inspect Form I-9 documents. Starting August 1, this new alternative procedure allows qualified employers who are enrolled in E-Verify to verify Form I-9 documents electronically through a live video call.
Updated 8/3/23: On July 31, 2023, the USCIS revised the Handbook for Employers M-274 to reflect the new alternative procedure and revised Forms I-9 (8/1/23 edition), as well as other new updates, guidance and clarifications.
The new rule only allows “participants in good standing in E-Verify” to use the alternative procedure. Being in “good standing” means that the employer:
- Has enrolled in E-Verify for of its all hiring sites in the United States;
- Complies with all E-Verify program requirements, such as completing the required E-Verify tutorial that includes fraud awareness and anti-discrimination training; and
- Continues to be a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure.
Operated by the USCIS and the Social Security Administration, E-Verify is a free, web-based system that allows employers to electronically confirm their employees’ employment eligibility by comparing information from their Form I-9, Employment Eligibility Verification against federal government databases.
Using E-Verify is optional for most California employers — only federal contractors and subcontractors are required to use it — although it’s mandatory in some states. Employers opting to use E-Verify have to comply with its requirements and restrictions, including displaying notices in the workplace so they’re clearly visible to potential employees, and not using it to verify the status of an existing employee or of an applicant who hasn’t received a job offer yet. Violations of the federal or state E-Verify laws could expose you to significant civil penalties.
Alternative Procedure to Inspect Form I-9 Documents
Under the alternative procedure, employers must still inspect documents within three business days of the employee’s first day of work, but a qualified employer (or an authorized representative acting on the employer’s behalf) doesn’t need to physically examine Form I-9 documents. Instead, the DHS rule states employers can use the alternative procedure, but only if they:
- 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. The documents that the employee transmits must be the same documents that will be presented during the live video interaction.
- 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.
- Indicate on the revised Form I-9 (edition 08/01/23), by checking 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). This is an important requirement because employers who aren’t using E-Verify are not required to keep copies of documentations and simply have the option to retain copies.
- In the event of a Form I-9 audit or investigation by a relevant federal government official, make available 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.
If an employee is unable or unwilling to submit documentation using the alternative procedure, the employer must allow that employee to submit documentation for physical examination.
Employers using the alternative procedure must do so consistently for all employees at an E-Verify hiring site. However, an 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 doesn’t do so for a discriminatory purpose, such as treating employees differently based on citizenship, immigration status or national origin.
COVID-19 Temporary Flexibilities and the Alternative Procedure
As previously reported, COVID-19 temporary flexibilities for Form I-9 document inspection expire on July 31, 2023, and any deferred physical inspection must be completed by August 30, 2023. However, qualified employers who participate in E-Verify can use the alternative procedure to satisfy the requirement to physically examine Form I-9 documentation that had been examined remotely under the COVID-19 flexibilities, but only if the employer:
- Was enrolled in E-Verify at the time they performed a remote examination of an employee’s Form I-9 documentation for Section 2 or reverification while using COVID-19 flexibilities;
- Created an E-Verify case for that employee (except for reverification); and
- Performed the remote inspection between March 20, 2023, and July 31, 2023.
This means employers who relied on COVID-19 flexibilities but were not enrolled in E-Verify still have to physically inspect the documentation by August 30, 2023.
Employers using the Form I-9 (edition date 10/21/19) must add “alternative procedure” with the date of the examination (i.e., the date of the live video interaction) to the Section 2 “Additional Information” field on the Form I-9, or in Section 3, as appropriate. However, employers can only use Form I-9 (edition date 10/21/19) until October 31, 2023, after which the new edition dated 8/1/23 becomes mandatory.
Employers interested in taking advantage of this alternative procedure should first ensure they are in good standing as E-Verify users and familiarize themselves with corresponding requirements.