The rules around remote document verification of I-9 documentation continue to change. On July 21, 2023, the United States Citizenship and Immigration Services (USCIS) announced a final rule, effective August 1, 2023, that will allow employers to utilize an alternative procedure under which certain qualifying employers may inspect employees’ Form I-9 supporting documentation virtually. Physical verification of I-9 documents had been required for all new hires until the COVID-19 remote verification exception was created in March 2020.
The USCIS previously announced that the remote verification option was ending on July 31, 2023. The newly announced procedure begins the next day, August 1st. DHS confirmed that only employers that use E-Verify who are in good standing may continue to conduct verifications electronically after August 1, 2023. E-Verify employers performing remote verification must conduct a live video interview with the employee, retain copies of all documents presented in the I-9 verification process and create E-Verify cases for new employees.
Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020 to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023 to satisfy the physical document examination requirement for those employees by August 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by August 30, 2023.
To facilitate the transition to permanent virtual verification, the USCIS also announced that they soon will provide a new streamlined and shortened Form I-9. The revised Form I-9 (edition date 08/01/23) will be published on www.uscis.gov on August 1, 2023. Employers can use the current Form I-9 (edition date 10/21/19) through October 31, 2023. This new edition of the Form I-9 incorporates the necessary changes to accommodate virtual verification, including the addition of a checkbox that allows employers to indicate remote examination under the alternative procedure. Starting November 1, 2023, all employers must use the new Form I-9. After that date, employers will be subject to penalties if they use the older form.
Employers must make I-9 forms available for inspection upon request by officers of the DHS, the United States Department of Justice or the United States Department of Labor. Employers who do not complete and retain I-9 forms properly may face civil money penalties and, in some cases, criminal penalties, according to the DHS.
If an employer is not currently an E-Verify participant, it may enroll in E-Verify, take the required E-Verify tutorial course, and begin to utilize the alternative virtual verification procedure after August 1, 2023.
Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding human resources compliance issues. For all MEA members, the Hotline is available to provide this assistance. For MEA Essential and Premier members, a Member Legal Services attorney is available for additional consultation.
If you are not an MEA Member, contact us today to schedule a consultation with a membership specialist, help us understand your needs, and learn how we can help.
*This Alert is provided for general informational purposes only and does not constitute legal advice.