New guidance from USCIS provides a new alternative, starting August 1, 2023, allowing employers that participate in E-Verify to inspect documents presented for I-9 completion remotely. This update will free qualifying employers from the burden of performing a physical verification.
To qualify, employers must be in good standing with E-Verify. This significant change in USCIS policy provide a pragmatic solution for qualifying employers, particularly those with large remote-working populations. The new guidance is also timely – as it is effective the day after USCIS’ COVID-19 flexible guidance is set to expire.
Important elements of the new guidance include:
- Qualified employers electing to utilize the alternative procedure must do so consistently for all employees at the same worksite.
- However, employers may choose to offer the alternative procedure for remote hires only while continuing to apply physical document examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for discriminatory purpose or to treat employees differently based on citizenship, immigration status, or national origin.
- The alternative protocol requires that, within three business days of an employee’s first day of employment, the qualified employer must:
- Examine copies (front and back, if the document is two-sided) of the document(s) transmitted by the employee for verification to ensure the documentation reasonably appears to be genuine;
- Conduct a live video interaction with the individual presenting the document(s) to, again, ensure that the documentation reasonably appears to be genuine and related to the individual;
- 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;
- Retain clear and legible copies of the documentation (front and back if the documentation is two-sided); and
- 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 document examination in connection with the employment eligibility verification process.
- This new rule also applies retroactively to employers that were already enrolled in E-Verify and inspected documents remotely pursuant to the COVID-19 flexible guidance provided by ICE. Employers that fall into that bucket must still re-inspect qualifying documents and annotate the existing I-9 under this alternate procedure but may do so remotely. Employers not enrolled in E-Verify at the time of I-9 completion pursuant to the COVID-19 flexible guidance must still complete the in-person inspection of I-9s by August 30.
- Employers should begin using a new version of the Form I-9 as of August 1, 2023; however, employers may continue to use the existing version (edition 10/21/2019) until October 31, 2023.
Employer Takeaways
- If already enrolled in E-Verify, confirm that your company remains in good standing with the program.
- If already enrolled in E-Verify, work with counsel to draft a clear policy as to whether I-9s will be completed remotely for all employees, or only remote employees, on a moving forward basis. Provide training to your internal I-9 team to ensure E-Verify is completed accurately and timely and the new USCIS requirements for remote I-9 completion are met.
- If enrolled in E-Verify prior to USCIS’ COVID-19 flexible policy, determine whether you will re-verify supporting documents for I-9s completed pursuant to this policy remotely or in person.
- If not enrolled in E-Verify, consider enrollment given the added benefit of remote I-9 completion. Partner with counsel to weigh the additional compliance requirements for participating employers when making this determination.
- Move forward with in-person review of I-9 supporting documents completed remotely pursuant to USCIS’ COVID-19 flexible policy if your company was not enrolled in E-Verify at the time of hire. This must be completed by August 30, 2023.