USCIS Announces New Edition of Form I-9 and New Policy Allowing for Remote Inspection of Employment Verification Documents for E-Verify Employers
On August 1, 2023, the U.S. Citizenship and Immigration Services (USCIS) published a new edition of the I-9 Employment Eligibility Verification form. All employers are required to start using the new form no later than November 1, 2023.
In conjunction with the new form, the USCIS published a Final Rule allowing for remote inspection of employment verification documents. The alternate procedure may only be used by participants in good standing in the Department of Homeland Security’s (DHS) E-Verify program.
The publication of the new version of the I-9 form and Final Rule coincides with the termination of COVID-19 Temporary Flexibility policy which allowed employers to remotely inspect I-9 forms and documents on a temporary basis during COVID. This policy ended on July 31, 2023. Employers who elected to use remote inspection during the pandemic are now required to comply with “in-person physical inspection” by August 30, 2023. Alternatively, employers who are enrolled in E-Verify, and who verified an employee’s documents pursuant to the temporary flexibility policy, may reinspect these documents remotely, provided that the employer created an E-Verify case for the employee between March 20, 2020 and July 31, 2023.
A Brief History of Employment Authorization Inspection Requirements
In 1986, Congress passed the Immigration Reform and Control Act (IRCA) which requires all employers to verify new employees’ work authorization within three business days of hire. The legacy Immigration and Naturalization Service (INS) promulgated regulations pursuant to IRCA requiring that the verification be done using the I-9 Employment Eligibility Verification form. The regulations also required that employers conduct the verification process in person, inspecting the original documents submitted to establish each new hire’s eligibility to work in the United States.
The E-Verify Program
In 1996, INS introduced the E-Verify pilot program to be used in conjunction with the I-9 employment verification process. Unlike the I-9 process by itself, which only requires a physical inspection of documents, E-Verify involves further verification by comparing the documents presented by a prospective hire against data contained in a DHS (formerly INS) database. For most employers, the use of the E-Verify program is optional. However, the DHS provides certain incentives to encourage the use of this program, including eligibility to hire F-1 students pursuant to so-called ‘STEM extensions.’ The new alternative remote inspection option provides an additional incentive for employers to sign up for the E-Verify program.
The COVID Temporary Flexibility Policy
On March 20, 2020, DHS introduced its ‘temporary flexibility’ policy which allowed for remote inspection of employment verification documents (e.g. through video stream, email scans, etc.) as an accommodation to employers during the COVID-19 pandemic. This policy was limited to employers whose employees were working remotely during the pandemic, and was contingent upon employers physically inspecting documents after ‘normal operations resumed.’ DHS periodically extended this I-9 inspection flexibility until it announced on May 4, 2023, that the accommodation would end on July 31, 2023. DHS also confirmed that employers must update the I-9 forms created under the temporary policy no later than August 30, 2023, by conducting an in-person inspection of I-9 documentation.
Updates to I-9 Form and Introduction of Alternative Remote Inspection Procedure
On August 1, 2023, DHS introduced the new I-9 form, and revised its policy to allow remote inspection for employment authorization documents for E-Verify employers. The most significant change to the I-9 form is the addition of a new checkbox allowing employers enrolled in E-Verify to confirm they have examined employment verification documents remotely. The new form has also been simplified by combining Sections 1 and 2 on a single page, updating the list of acceptable documents to include certain receipt notices, and creating separate supplements for preparer/translator certifications and reverification/rehires with more fields to facilitate the reuse of the same form.
The new I-9 form became available for use on August 1, 2023. Effective November 1, 2023, only the new I-9 form may be used.
Form I-9 Changes Impacting E-Verify Employers
Alternative I-9 Remote Inspection Procedure for Employees Hired on or after August 1, 2023
Under the new alternative remote inspection procedure, Employers enrolled in the E-Verify program have the option to verify employment eligibility documents remotely for employees hired on or after August 1, 2023. This procedure requires employers to take the following steps:
The employee must transmit a copy of the document(s), including front and back pages for any two-sided documents, to the employer.
The Employer must conduct a live video meeting with the individual presenting the document (s) to ensure that the documentation reasonably appears to be genuine and relates to the individual. The employee must present the same documents (from Step 1 above) during the live video interaction; and
The employer must retain a clear and legible copy of the documentation (front and back if the documentation is two-sided).
Eligible employers using the August 1, 2023 version of the I-9 form, must then check the box to indicate use of the “alternative procedure” in the Additional Information field in Section 2 of the I-9 form.
As noted above, the new alternative procedure is only available to employers who are enrolled in the E-Verify program, and are in good standing with this program.
Satisfying the I-9 Physical Inspection Deadline for Individuals Hired between March 20, 2020 and July 31, 2023
Employers who elected to conduct remote inspection of I-9 documents for employees who were initially hired between March 20, 2020 and July 31, 2023 under the COVID temporary flexibility policy must reinspect employment verification documents no later than August 30, 2023. Employers may complete this re-inspection by meeting the employee hired during this period in person, or by using the alternative remote option discussed above. In order to use the alternative option for reinspection, the following requirements must be met:
The employer must have been enrolled in E-Verify prior to performing the initial remote inspection of the employee’s Form I-9; and
The employer must have created an E-Verify case for the employee between March 20, 2020 and July 31, 2023.
Employers who elect to use the alternative re-inspection procedure must annotate the original I-9 form prepared at the time of hire with “Alternative Procedure”, the date the second remote inspection took place, and the initials of the person completing the reinspection. The annotation should appear in the Additional Information field of Section 2, or in Section 3 of the I-9 form, as appropriate.
What this Means for our Clients
The USCIS’ new policy providing a permanent virtual inspection option for employment verification documents will provide a welcome relief to E-verify employers hiring employees who will be working remotely. It will also incentivize many employers who have not already enrolled in E-Verify, the federal government’s free I-9 compliance tool, to register for the program.
Employers considering enrollment in E-Verify should weigh the administrative burden of E-Verify enrollment against the convenience of remote I-9 inspection and eligibility to sponsor F-1 STEM extensions. We have prepared instructions to guide employers through E-Verify Registration on our website here.
For eligible E-Verify employers who used the temporary flexibility policy to inspect employment verification documents remotely during the COVID pandemic, the new policy provides an option to complete the reinspection process without having to meet in-person with employees that continue to work remotely. As noted above, the re-inspection must be completed by August 30, 2023.
Please contact our attorneys should you have questions on how these new policies impact your company.