Embracing Remote Flexibilities: The New Era of Form I-9 Verification

In a significant move aimed at streamlining and providing additional flexibilities to the employment verification process, the Department of Homeland Security (DHS) announced a final rule granting certain employers the authority to utilize an alternative when examining Form I-9 documentation. This new alternative process is optional, and available only to E-Verify employers in good standing. Eligible employers may adopt this alternative as soon as August 1, 2023. The announcement follows the agency’s proposed rulemaking in August 2022 aimed at exploring alternative means for employers to verify the identity and employment authorization of new employees.

This development opens up opportunities for employers with multiple offices, remote workers, or those seeking to enhance their digital infrastructure to transition to an electronic document review system. Employers can verify employee information quickly, accurately, and without the need for physical presence.

Existing Verification Processes
Historically, the following processes were available to employers for inspecting Form I-9 documentation submitted to establish an employee’s identity and work authorization:

Direct Review by Employer. The employer physically examines each document submitted by the employee.
Review by Authorized Representative. The employer designates an authorized representative to physically examine each document presented by the employee. An authorized representative may be any person the employer designates to complete and sign the Form I-9 on its behalf. Importantly, the employer remains liable for any violations in connection with the form or the verification process.

Due to the precautions implemented during the COVID-19 pandemic, DHS authorized a temporary exemption from the physical inspection requirement.

Temporary Remote Inspection. This temporary policy permitted employers (or their authorized representatives) to conduct a remote inspection (e.g., video, fax, email) for certain employees as a means to postpone the in-person physical inspection requirement until normal operations resumed. The policy was announced in March 2020, and ended on July 31, 2023.

A New, Permanent Solution
Under the new procedure available to employers, the employee may provide a copy of the I-9 supporting documents to the employer or its authorized representative, followed by a video call to present the originals. The employer is not required to physically examine the materials. In brief:

New Remote Inspection. The employer (or an authorized representative) must examine copies (front and back) of the documentation and conduct a live video interaction with the employee. During the video, the employee must present the originals of the same documents. A physical inspection of the documentation is not required. This procedure was announced in July 2023.

While the new alternative procedure makes permanent some of the flexibility provided by the March 2020 announcement, the requirements differ in several key respects. For example, as noted above, the temporary policy during the pandemic authorized employers to conduct remote inspections by video, fax, or email—and then to proceed with a physical examination of the documents once normal operations resumed.

Revised Form I-9 Captures New Verification Method
In concert with this announcement, DHS is issuing a new version of the Form I-9 (edition date 08/01/23) that includes a corresponding checkbox for employers to indicate their use of the alternate remote procedure rather than via physical examination. Further additional changes include:

Reduces Sections 1 and 2 to a single-sided sheet;
Allows the form to be fillable on tablets and mobile devices;
Moves the Preparer/Translator Certification in Section 1 to a separate, standalone supplement;
Moves Section 3 (Reverification and Rehires) to a standalone supplement;
Revises the Lists of Acceptable Documents; and
Reduces the form instructions by almost half.

Employers may continue using the prior version of Form I-9 (Edition: 10/21/2019) through October 31, 2023. Employers must indicate their use of the alternative procedure by writing “alternative procedure” in the “Additional Information” field in Section 2. No later than November 1, 2023, employers must use the new Form I-9 (Edition: 08/01/2023) and indicate their use of the alternative procedure by completing the corresponding box in Section 2 or in the section corresponding to reverification.

Ensuring Compliance
Participation in the new remote option is limited to E-Verify participants in good standing. The employer must complete required training relating to fraud awareness and anti-discrimination practices through E-Verify. Further, employers must retain clear and legible copies of all documents presented by the employee seeking to establish identity and employment eligibility for the Form I-9. Employers must confirm the identity and employment authorization of their newly hired employees by using E-Verify to electronically compare information from the Form I-9 to records available to DHS.

Employers who participated in the COVID-19 remote inspection flexibilities (March 20, 2020, to July 31, 2023)—and were enrolled in E-Verify at that time—may choose to use the new alternative procedure starting on August 1, 2023, to satisfy the physical document examination.

Best Practices for Employers

Non-Discriminatory Practices	Employers should ensure that the new procedure is implemented consistently to avoid allegations of discrimination. If the alternative procedure is available to new employees at an E-Verify hiring site, the employer must do so consistently for all employees at that site. However, a qualified 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 does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic. An employer may physically examine documents when requested to do so by an employee.
Training	Employers (and the users who create and manage their cases) must complete an E-Verify tutorial about their responsibilities. The tutorial includes anti-discrimination and fraud training. The anti-discrimination training clarifies the federal laws prohibiting unfair documentary practices and discrimination based upon citizenship, immigration status, or national origin. The fraud awareness training provides guidance for employers to identify common document anomalies.
Audits and Investigations	In the event of a Form I-9 audit, or investigation by a relevant federal government official, employers must make available the clear and legible copies of documentation presented by the employee in connection with the Form I-9 process.
COVID-19 Flexibilities	E-Verify Employers: Qualified employers that were enrolled in E-Verify during the COVID-19 temporary flexibilities period (between March 20, 2020, and July 31, 2023) may use this alternative procedure to satisfy the requirement to physically examine Form I-9 documentation that had been examined remotely under the COVID-19 flexibilities if certain conditions are met. These conditions include writing “alternative procedure” with the date of examination (i.e., the date the employer performed a live video interaction as required under the alternative procedure) to the Section 2 “Additional Information” field on the Form I-9 or in Section 3, as appropriate. Employers Not Enrolled in E-Verify: Employers who were not enrolled in E-Verify at the time they initially performed a remote examination of an employee’s documents under the COVID-19 flexibilities are required to physically examine the employee’s Form I-9 documents in the employee’s physical presence. The physical examination must be completed on or before August 30, 2023.
Security and Personal Privacy Protections	Employers opting to utilize the authorized alternative procedure must adhere to stringent security protocols to safeguard sensitive employee data during the remote review process. These measures are crucial to ensure the privacy and integrity of personal information throughout the verification process.

As this rule becomes effective, employers should stay informed about any further guidance or updates to ensure compliance with all relevant regulations and maintain the integrity of the employment verification process.

Additional Options Available in the Future?
In August 2022, DHS published a proposed rule, “Optional Alternatives to the Physical Documentation Examination Associated with Employment Eligibility Verification (Form I-9),” which gave DHS the framework to authorize alternative options for document examination procedures with respect to some or all employers.

The new final rule, published almost a year later in July 2023, is titled “Optional Alternative 1 to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9),” (emphasis added) suggesting that this may be just the first of several alternatives that will eventually become available to employers.

Conclusion
By embracing this authorized alternative procedure, organizations can adapt to the changing landscape of work while upholding legal requirements, enhancing efficiency, expanding their talent pool, and reducing logistical challenges associated with traditional in-person verifications.