By: Grace W. Waweru and Karuna Simbeck
On July 21, 2023 Department of Homeland Security (DHS) announced a new I-9 alternative procedure to the physical examination of I-9 documents. As of August 1, 2023, employers who are in good standing with E-Verify have the option to conduct verification electronically with a live video call interaction. This new final rule was published in the Federal Register on July 25, 2023, and it outlines the new alternative procedure in detail.
When can employers start using the alternative procedure for remote employment verification?
Beginning August 1, 2023, qualified employers can conduct remote inspections of employees’ identity and work authorization documents.
When will the alternative procedure end?
Currently, there is no expiration date for alternative procedures, but the Department of Homeland Security (DHS) has the authority to amend or cancel to address a public health or national emergency.
Which employers are qualified to participate in the new alternative procedure to the Physical Document Examination of I-9 Documentation?
To participate in the alternative procedure, an employer must be a participant in good standing in E-Verify. A participant in good standing in E-Verify refers to (1) an employer that has enrolled in E-Verify with respect to all hiring sites in the U.S. that use the alternative procedure; (2) 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 U.S.; and (3) continues to be enrolled and a participant in good standing in E-Verify at any time during which the employer uses the I-9 alternative procedure.
What does the I-9 alternative procedure entail?
Within three business days of an employee’s first day of employment, a qualified employer (or an authorized representative acting on such an employer’s behalf, such as a third-party vendor) who chooses to use the alternative procedure must: (1) examine copies (front and back, if the document is two-sided) of Form I–9 documents to ensure that the documentation presented reasonably appears to be genuine; (2) conduct a live video interaction with the employee presenting the documentation to ensure that the documentation reasonably appears to be genuine and related to the employee. The employee must first transmit a copy of the documentation to the employer and then present the same documentation during the live video interaction; (3) the employer must indicate on Form I–9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for re-verification, as applicable. If an employer is using the 10/21/2019 version of the Form I–9 for the alternative procedure, employers must indicate their use of the alternative procedure by writing “alternative procedure” in the Additional Information field in Section 2; and (4) the employer must retain a clear and legible copy of the documentation (front and back if the documentation is two-sided).
Note, as of August 1, 2023, employers should begin using new Form I–9 with a version date of (Edition: 08/01/2023) to comply with their employment eligibility verification responsibilities. However, employers may continue using the prior version of Form I–9 (Edition: 10/21/2019) through October 31, 2023. After October 31, 2023, the prior version of Form I–9 will no longer be valid for use.
Must qualified employers use E-Verify to create cases if they opt to use the alternative procedure?
Yes. Once enrolled in E-Verify, employers will be required to create a case for all newly hired employees (regardless of whether the alternative procedure is used) at each hiring site that is enrolled in E-Verify, in accordance with the E-Verify Memorandum of Understanding (available in each E-Verify employer account under “Company Profile”).
E-Verify employers are required to follow all applicable requirements, such as requirements imposed by the Federal Acquisition Regulation (FAR) E-Verify clause for certain contracts or federal contractors, avoid unlawful discrimination in the E-Verify process and remain in compliance with E-Verify requirements.
What is the retention requirement under the alternative procedure?
Currently, employers who physically examine the documentation presented by new employees may, uniformly, choose to make and retain copies or scans of the documentation presented by employees for the purpose of completing Form I–9. However, employers that use E-Verify must make and retain copies of documentation presented by employees for List A of Form I–9.
Importantly, qualified employers who choose to use the I-9 alternative procedure have additional retention requirements. Qualified employers must retain a clear and legible copy (front and back if the documentation is two-sided) of all documents presented by the employee seeking to establish identity and employment eligibility for the Form I–9, and, in the event of an audit, provide access to these copies upon request.
Are there special Form I–9 reporting requirements associated with the alternative procedure?
Yes, qualified employers must indicate by completing the corresponding box, on Form I–9, that an I-9 alternative procedure was used to examine documentation for either Section 2 or when conducting re-verification. If an employer is using the 10/21/2019 version of Form I–9 for the alternative procedure, employers must indicate their use of the alternative procedure by writing “alternative procedure” in the Additional Information field in Section 2. See an example here.
May a qualified employer offer the alternative procedure to only some employees?
No. If a qualified employer chooses to offer the alternative procedure to some employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site.
If a qualified employer chooses to use the alternative procedure for my E-Verify hiring site, must the employer do so for all employees, including in-person or hybrid employees?
If a qualified employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that 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 discriminatorily based on their citizenship, immigration status, or national origin.
Is the use of the alternative procedure by qualified employers required?
No, qualified employers who wish to continue conducting physical examinations may continue to do so.
Can qualified employers use the alternative procedure to meet the in-person physical examination due on August 30th for the end of the COVID-19 temporary flexibilities?
Yes, if they meet certain criteria. Qualified employers that:
- were enrolled in E-Verify at the time they performed a remote examination of an employee’s Form I–9 documentation for Section 2 or reverification while using the COVID–19 flexibilities,
- created an E-Verify case for that employee (except for reverification), and
- performed the remote inspection between March 20, 2020 and July 31, 2023, can now use the alternative procedure to satisfy the required physical examination of the employee’s documents for that Form I–9 by August 30, 2023.
Such employers should not create a new case in E-Verify. If such employers use the alternative procedure instead of physical examination, they must follow the steps of the alternative procedure explained above.
Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must still complete an in-person physical examination by August 30, 2023.
If an employee does not want their employer to apply the alternative procedure with respect to that employee, can qualified employers refuse to perform physical document examination?
No, qualified employers must allow employees who are unable or unwilling to submit documentation using the alternative procedure to submit documentation for physical examination.
Are there any other requirements for qualified employers to be able to participate in the alternative procedure?
Employers who enroll in E-Verify and any users who manage and create E-Verify cases must complete E-Verify tutorials that include fraud awareness and anti-discrimination training that are free and accessible as part of the E-Verify enrollment process to any users who manage and create E-Verify cases.
Where can employers find other resources on how to complete the I-9?
Instructions and guidance on how to complete the Form I–9 can be found in the Form I–9 instructions and in other related guidance on the I–9 Central website, including the M–274, Handbook for Employers and https://www.uscis.gov/i-9-central/form-i-9-related-news/questions-and-answers-related-to-covid-19.
If a qualified employer is using the alternative procedure to meet the in-person physical examination due on August 30th for the end of the COVID-19 temporary flexibilities, must an employee present the same I-9 documents that were presented during remote inspection?
No. There has been some confusion on this issue because of the wording on I-9 central. However, it is our understanding that an employer may not ask for specific documents. This is further supported by the below FAQs which discuss physical in-person inspection of acceptable documents. It’s difficult to argue that there could be two different policies for in-person vs. alternative procedure. These FAQs can also be found here https://www.uscis.gov/i-9-central/form-i-9-related-news/questions-and-answers-related-to-covid-19:
Please contact the Klasko Law compliance team if you have any questions regarding I-9 compliance.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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