On July 21, 2023, the U.S. Citizenship and Immigration Services (USCIS) announced that a revised version of Form I-9, Employment Eligible Verification will be published on August 1, 2023. USCIS stated that the new Form I-9 will be streamlined and reorganized and will reflect recent changes announced by the Department of Homeland Security (DHS) to the I-9 document verification process.
DHS had implemented limited exceptions to these in-person review requirements during the COVID-19 pandemic, and these flexibilities are set to expire on July 31, 2023, with employer compliance required by August 30, 2023.
All U.S. employers are required to complete Form I-9 for employees hired to work in the United States. This form serves to verify an employee’s identity and ability to work in the U.S. Under the standard procedure, an employee must present their employer with acceptable identity and employment authorization documents within 72 hours of hire. The employer must physically inspect the documents to determine whether they reasonably appear to be genuine and belong to the employee.
Recognizing the end of these COVID-19 flexibilities, DHS published a proposed final rule and accompanying document in the Federal Register on July 21, 2023 outlining an optional alternative to the physical document examination procedure. Under this new procedure, certain employers may choose to remotely examine their employee’s identity and employment authorization documents.
Beginning August 1, 2023, employers may use the new alternative remote examination procedure for new hires and/or for employees hired between March 20, 2020 to July 31, 2023 whose documents were reviewed in accordance with the COVID-19 flexibilities. Further, only employers who are participants in good standing in E-Verify are eligible to use this new remote examination procedure.
E-Verify is a web-based system operated by DHS in partnership with the Social Security Administration. The system enables participating employers to electronically verify the employment eligibility of their employees. Several states have enacted laws restricting and/or requiring employer use of E-Verify in certain cases, so please contact your Dentons attorney if you have questions about your E-Verify obligations.
Alternative Process – Steps for New Hires
Employers who choose to follow the DHS-authorized alternative procedure for new hires must follow the following steps within three business days of an employee’s first day of employment:
1.) Create an E-Verify case for the employee;
2.) Examine copies of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
3.) Conduct a live video interaction with the new employee to ensure that the documentation reasonably appears to be genuine and related to the individual;
4.) Indicate on the Form I-9 that an alternative procedure was used to examine the employee’s documentation;
5.) Retain copies of all documents presented by the employee; and
6.) Make copies of the identity and employment authorization documentation available in the event of an audit.
Alternative Process – Steps for Employees Hired during the COVID-19 Pandemic
Certain employers who utilized the COVID-19 flexibilities during the pandemic may choose to follow the alternative process to satisfy the physical document examination requirement by the August 30, 2023 deadline, provided they meet the following requirements:
1.) Employer must have performed a remote document examination between March 20, 2020 to July 31, 2023;
2.) Employer must be an E-Verify participant in good standing who was enrolled in E-Verify at the time they performed a remote examination of an employee’s documents; and
3.) Employer must have created an E-Verify case for that employee.
As always, employers must avoid any procedures that could constitute unlawful discrimination. As such, 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. However, the DHS has indicated that a qualified employer may choose to offer the alternative procedure only for remote hires but continue to follow the standard physical inspection procedure for all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic.
Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by Aug. 30, 2023. Employers can use the current Form I-9 (edition date 10/21/19) through Oct. 31, 2023. Starting Nov. 1, 2023, all employers must use the new Form I-9.
Please contact any member of the Dentons Immigration team if you have any questions regarding the above.