Effective August 1, 2023, the Department of Homeland Security will now allow employers an alternative option to the in-person physical document examination method required by 8 CFR 274a.2(b)(1)(ii)(A). The alternative method provides qualified employers with the option to review electronic copies of I-9 documents and conduct a live video interaction with the employee presenting the documents remotely.
Prior to this new rule, employers were required to physically examine each original document from the employee in the employee’s physical presence. During the COVID-19 pandemic, DHS provided flexible optional alternatives to the physical examination requirements. DHS found many benefits of these optional alternatives and now wishes to help reduce administrative hurdles and paperwork and serve those who have adopted permanent telework and remote work arrangements.
Importantly, the alternative option is only available to employers who are participants in good standing in E-Verify. DHS defines an employer in good standing in E-Verify as one “that has enrolled in E-Verify with respect to all hiring sites in the United States that use the alternative procedure; 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 continues to be a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure.”
DHS provides five main steps for employers wishing to utilize the optional alternative. Within three business days of an employee’s first day of employment, a qualified employer (or an authorized representative acting on the employer's behalf, such as a third-party vendor) who chooses to use the alternative procedure must:
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;
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;
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, consistent with applicable regulations, a clear and legible copy 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.
Employers must confirm the identity and employment authorization of their newly hired employees by using E-Verify. Employers are to electronically compare the information from the Form I-9 to records available to DHS. This comparison will be done through E-Verify. E-Verify will confirm List A documents that evidence identity and employment authorization, and electronically send the photograph from the official record to the employer to compare with the photo on the document provided by the employee. All cases must include the employee’s social security number. All list B documents must include a photo, and E-Verify will use the data sources available to DHS to electronically verify the identity information provided on most state-issued IDs and driver’s licenses.
Please find other important highlights of the rule below:
If an employer chooses to offer the alternative option to new employees at an E-Verify hiring site, the employer must offer it for all employees at that site. However, an employer may choose to offer the alternative option to remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, as long as the employer does not do so for discriminatory purposes.
Employers who choose to use the alternative option must retain clear and legible copies of all documents presented by the employee during the I-9 verification process.
Employers must complete a fraud awareness and anti-discrimination training offered through E-Verify.
DHS is adding a box to the Form I-9, in which employers must check the box indicating that they will be using the DHS-authorized alternative procedure. Beginning August 1, 2023, employers should begin to use Form I-9 with the version date of 08/01/2023.
The new rule does not change the standard that is required of employers examining the documentation, i.e. employers must still ensure the documentation “reasonably appears to be genuine and to relate to” the employee presenting the documentation. 8 U.S.C. 1324a(b)(1)(A)(ii).
If an employee does not wish to use the alternative option, the employer must allow the employee to submit documentation in person for physical examination.
Employers cannot apply the alternative option to employees hired before August 1, 2023.
DHS may amend or cancel this rule at any time.
This blog is not to be used as legal advice and simply reiterates the main highlights of the new rule. We encourage you to read the full rule here and the accompanying document which includes frequently asked questions here. We further encourage you to seek legal counsel if you have questions.