DHS Ends Temporary Suspension of Form I-9 Physical Examination Requirements and Announces Alternative Verification Procedure and Revised Form I-9

On July 21, 2023, the U.S. Department of Homeland Security (“DHS”) announced multiple changes to the Form I-9 process. The changes narrow the circumstances in which employers may review I-9 documentation remotely. In addition, employers that reviewed a current employee’s documents remotely under COVID-related standards without using E-Verify will be required to review the employee’s original documents in the presence of the employee, unless the employer enrolls and participates in E-Verify. Furthermore, DHS has announced that a revised Form I-9 will soon be issued.

Overview of Employment Eligibility Verification Obligations

Background

Federal law requires that every employer that hires an individual for employment in the United States must complete Form I-9, Employment Eligibility Verification. The Form I-9 process arose out of the Immigration Reform and Control Act of 1986 (the “IRCA”), which prohibits employers from knowingly hiring and employing an individual in the United States who is not authorized to work in the United States.

Form I-9 Process

Under current regulations, every employer is required to have every newly hired employee who is working in the United States complete the employee section of Form I-9. The employee must then sign, date, and submit it to the employer for review, together with certain documentation establishing his or her identity and employment authorization, no later than the first day of employment. Within three business days of the first day of employment, the employer must review the employee section and the approved documents establishing the employee’s identity and authorization to work in the United States. The employer must then complete the employer section of the Form I-9, sign and date it, and attest that the employer has examined the documents presented by the employee to determine that the documentation reasonably appears to be genuine and to relate to the person presenting it.

Temporary Suspension of Physical Inspection Rules

Before the COVID-19 pandemic, under longstanding regulations, employers were required to review originals of documents presented by an employee and attest that they had reviewed the physical documents. Also, although not appearing in the I-9 regulations, the DHS states in its Guidance and Handbook that an employer’s review of the documentation submitted by an employee must occur in the physical presence of the employee. Effective March 20, 2020, in recognition that many employees were working remotely due to the COVID-19 pandemic, DHS suspended, temporarily for remote employees (and employers and workplaces that were operating remotely), its requirement that an employer examine, in the physical presence of the employee, the employee’s original verification documents, and instead permitted such employers to review an employee’s identity and employment authorization documents remotely (e.g., over video link, fax or email) until such time as normal operations resumed.

Under the terms of the suspension, once normal operations resumed, physical inspections were required to be conducted of any employee’s documentation that had been reviewed remotely. Employers were instructed to enter “COVID-19” as the reason for the physical inspection delay in the “Additional Information” area of Section 2 of Form I-9, once physical inspection took place after normal operations resumed. Once the documents were physically inspected, the employer was to add “documents physically examined” with the date of inspection to the Additional Information field.

Suspension of Physical Inspection Rules Ends on July 31, 2023

On July 21, 2023, DHS announced a final rule in the Federal Register that ends the temporary COVID-19 flexibilities effective July 31, 2023, and replaces the temporary flexibilities with a new, alternative procedure for remote examination of Form I-9 documentation in conjunction with the E-Verify system, effective as of August 1, 2023. E-Verify is a free, internet-based service established under the IRCA for employment verification purposes. While most government contractors and employers in some states are required to use E-Verify, many other employers are not required to do so. Those that do not use E-Verify may enroll in E-Verify. Unlike employers that solely use I-9 verification, employers using E-Verify are required to retain copies of documents presented to establish identity and authorization to work.

Final Rule on Remote Verification of Form I-9 Documents

Effective August 1, 2023, employers that participate in E-Verify and are in good standing will have the option to conduct verification for new hires (including non-remote employees) with a live video call to ensure that the documentation reasonably appears to be genuine and related to the individual. Employers electing to use the remote verification option should enter in Section 2 of the Form I-9 that an alternative procedure was used to examine verification documents (or for reverification, as applicable). Employers are required to keep copies of all documents presented as part of the remote verification process.

While using the remote verification method is optional, employers that choose to offer the remote verification procedure generally must offer it to all employees at the hiring site. However, employers are permitted to offer the remote verification procedure only to remote employees and continue to use physical examination procedures for onsite or hybrid employees.

Physical Examination May Still Be Required for Employees Hired During the Temporary Rule Suspension

With the temporary flexibilities being terminated, employers now have until August 30, 2023 to conduct document inspection, in the physical presence of the employee, for those employees whose verification documents were reviewed remotely under the temporary flexibilities.

Under the new regulations, employers (i) that were enrolled in E-Verify at the time they performed remote examinations of employees’ Form I-9 documentation for Section 2 (and created an E-Verify cases for those employees) or (ii) that become participants in good standing in E-Verify by enrolling and receiving the required training, are permitted to use the remote verification method instead of conducting physical examinations of employees’ documents by August 30, 2023. As with new hires, employers should enter “alternative procedure” with the date of examination to the Section 2, Additional Information, field (or in Section 3, as appropriate) and must retain copies of all documents presented as part of the remote verification process. Employers that are eligible to use the alternative procedure for such employees, and elect to do so, should offer the alternative procedure to all applicable employees hired during the pandemic. As has been required for any employer that retains copies of an employee’s verification documents in connection with the E-Verify requirements, such an employer should retain copies of verification documents for all employees at the hiring site.

Employers that (i) were not enrolled in E-Verify at the time they initially performed a remote examination of an employee’s documents under the temporary rule suspension or (ii) do not become participants in good standing in E-Verify and use the new remote verification procedure, must physically examine the employee’s Form I-9 documents in the employee’s physical presence no later than August 30, 2023.

DHS Announces Impeding Release of Revised Form I-9

DHS also announced the impending release of a revised Form I-9, which will be made available for use as of August 1, 2023. The current Form I-9 can still be used by employers until October 31, 2023, after which all employers must use the revised form. The new form is intended to be more user friendly, and includes changes such as reducing Sections 1 and 2 to a single-sided sheet, adding a checkbox that employers enrolled in E-Verify can use to indicate they remotely examined identity and employment authorization documents under the alternative procedure, reducing the instructions from 15 pages to 8 pages, and revising the List of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation.