Yesterday, the U.S. Department of Homeland Security published its new I-9 regulations, which will take effect next Tuesday, August 1. The regulations have two components: (1) a remote I-9 document examination procedure, and (2) a new Form I-9.
The remote document examination procedure is very good news for employers. The procedure is available to current, qualifying E-Verify employer participants in good standing. Other employers may enroll in E-Verify and use the remote verification procedures for new hires.
We recently reported that the COVID-19 flexibilities that allowed remote verification were set to expire on August 30. Employers who verified I-9 documents remotely while the flexibilities were in place were required to perform physical, in-person inspections with respect to those employees by the August 30 deadline. However, under the new regulations, current, qualifying E-Verify employers will no longer have to conduct these “retroactive” in-person inspections – instead, they can use the procedures under the new regulations to inspect the documents remotely. (Other employers will still be required to conduct physical, in-person inspections by August 30.)
Here are the details of the new regulations:
Remote inspection option
The DHS has published an additional document with questions and answers about the remote option. Here are the highlights of the new remote I-9 document inspection option:
- Employers who are participants in good standing in E-Verify can use this option for both current employees and new hires. Employers who are not currently participants in good standing in E-Verify can use the remote option with employees newly hired after the employers qualify, but not with current employees.
- Employers are not required to use this alternative procedure. If they prefer physical, in-person inspections, they may continue to perform those.
- Qualified employers who choose to use the remote procedure must make it available consistently at each given worksite. However, even within a single worksite, employers may use remote verification for remote workers and in-person inspection for onsite or hybrid workers.
- Employers who verify documents remotely must retain clear and legible copies of all I-9 documents presented by the employees.
- If the employee prefers an in-person physical inspection (perhaps for data privacy reasons), the employer must honor that. This could potentially create more of a burden for the employer.
The remote procedure itself appears to be consistent with the procedure used during the pandemic. Here are the details:
“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” is required to do the following:
- Examine copies (front and back, if the document is two-sided) of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine.
- Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must first transmit a copy of the document(s) to the employer and then present the same document(s) during the live video interaction.
- Indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable.
- Retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back if the documentation is two-sided).
- In the event of a Form I-9 audit or investigation by a relevant federal government official, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.
(Quoted from the regulations with minor edits.)
The DHS says,
the combination of requiring E-Verify participation, fraud awareness training, expanded document retention (to include clear and legible copies of the identity and employment authorization documents presented by employees to complete the Form I–9), and live video interaction after the employee transmits a copy of the document(s) to the employer for real-time verification offers at least an equivalent level of security to physical examination.
Although the Section 2 document inspection can be completed within three business days of the employee’s start of work, we recommend that employers conduct the inspection and complete Section 2 on the employee’s first day of work if possible.
New I-9 Form
Employers can begin using the new Form I-9 on August 1. However, the current form (October 21, 2019 version) may be used through October 31 of this year.
The new Form I-9 will be “one page and accessible on tablets and mobile devices.”
Other features of the new Form I-9 include the following:
- The Form can be filled out on tablets and mobile devices.
- The Section 1 Preparer/Translator Certification area is a separate, standalone supplement that employers can provide to employees when necessary.
- Section 3, Reverification and Rehire, is a standalone supplement that employers can print as needed.
- The Lists of Acceptable Documents page includes examples of acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation.
- The instructions are reduced from 15 pages to 8 pages.
- A checkbox has been added that allows employers to indicate that they examined the Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination.
Conclusion
A permanent remote option for I-9 document inspections is an important benefit for employers, but this benefit comes with a condition – participation in E-Verify.