DHS Allows Remote Examination of Form I-9 Documents and Publishes Revised Form I-9

Key Points:

• Effective August 1, 2023, remote examination of Form I-9 documents is available to qualified E-Verify participants in good standing
• Effective November 1, 2023, all employers are required to use the revised Form I-9, Employment Eligibility Verification (Edition 08/01/2023) to comply with their employment eligibility verification responsibilities
• Certain employers are under re-inspection obligations, to be completed by August 31, 2023, in light of the end of the temporary COVID-19/Form I-9 flexibilities

On July 25, 2023, the Department of Homeland Security (DHS) issued a rule allowing for remote examination of Form I-9 documents as an alternative procedure to the existing in-person, physical examination of Form I-9 documents requirement. Form I-9 must be used by most U.S. employers to verify the identity and employment authorization of individuals hired for employment in the United States.

DHS Introduces Alternative Procedure for Form I-9 Completion

Effective August 1, 2023, E-Verify participants in good standing (“qualified employers”) may conduct remote Form I-9 document inspections for identity and employment verification purposes. Specifically, the DHS provides for a new alternative procedure where qualified employers must (1) examine and retain clear and legible copies of the Form I-9 documents (front and back, if applicable) presented by the employee, (2) conduct a live video conference call with the employee during the verification process and (3) indicate by completing the corresponding box on the Form I-9 that an alternative procedure was used to examine the documents. The DHS rule indicates that during the live video conference call the employee presents the same employment eligibility document(s) transmitted to the employer in advance of the video conference “to ensure that the documentation reasonably appears to be genuine and related to the individual.” Remote Form I-9 document inspections are to be conducted within three business days of an employee’s first day of employment. For ease of understanding, this alternative procedure is graphically depicted here.

Qualified employers have the option to either continue to physically inspect documents presented by newly hired employees or conduct remote Form I-9 document inspections. If so requested by the employee who is unable to submit Form I-9 documents through the alternative procedure, qualified employers are required to physically examine such documents.

Qualified employers are allowed to conduct remote Form I-9 document inspections for newly hired employees starting on or after August 1, 2023. This means that the alternative procedure cannot be used for employees hired prior to August 1, 2023. Qualified employers do not need to use the alternative procedure, but if they choose to use the alternative procedure for new hires, they must do so consistently and in a non-discriminatory manner.

COVID-19 Flexibilities End

In light of the end of the temporary COVID-19/Form I-9 flexibilities that allowed for remote inspections of Form I-9 documents that ended on July 31, 2023, certain employers must complete re-inspections of Form I-9 documents and update respective Form I-9s by August 30, 2023. As such, for newly hired employees between March 20, 2020, through July 31, 2023, E-Verify employers that remotely examined the Form I-9 documents and created E-Verify cases may now use the new alternative procedure and complete re-inspections by August 30, 2023. At the same time, employers that were not enrolled in E-Verify during the COVID-19 flexibilities but remotely inspected Form I-9 documents must complete in-person physical examinations of the Form I-9 documents by August 30, 2023.

New Form I-9 Must be Used as of November 1, 2023

Accompanying the new rule, the revised Form I-9 (Edition 08/01/2023) contains a checkbox for qualified employers to indicate when they have remotely inspected and examined Form I-9 documents. Employers do not need to complete the revised Form I–9 for current employees who already have a properly completed Form I–9 on file, unless reverification applies. While the current 2019 edition of the Form I-9 is acceptable for use through October 31, 2023, the revised Form I-9 becomes mandatory for use by qualified employers for all new hires beginning November 1, 2023.