DHS Announces Permanent Remote I-9 Document Verification for E-Verify Employers
On July 24, 2023, the Department of Homeland Security (DHS) published a final rule in the Federal Register that allows E-Verify employers to remotely verify the I-9 documents of newly hired employees after July 31, 2023, the sunset date of the COVID-19 Remote Document Verification Rule. In March of 2020, in response to the COVID-19 pandemic, DHS announced that employers may remotely verify a newly hired employee’s I-9 employment eligibility documents remotely. On May 5, 2023, DHS announced that remote document verification will end for all employers on July 31, 2023 and that employers who remotely verified their employee’s I-9 documents must physically inspect the remotely verified documents.
To utilize remote document verification on or after August 1, 2023, an employer must take the following actions:
- An employer must be enrolled in E-Verify and submit the newly hired employee’s information to E-Verify for review;
- An employer must verify the newly hired employee’s I-9 documents via live video interaction and indicate the use of remote verification on the I-9 form; and
- An employer must retain a copy of both sides of the documents the employee presented with the I-9 form for the appropriate retention period.
Employers who participated in E-Verify and submitted their employees to E-Verify during the COVID-19 pandemic (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. Although DHS does not say this in so many words, it appears that employers who complied with the newly announced remote document verification procedures during the pandemic need not revalidate their employee’s documents. Employers should examine their remote document verification process carefully before electing not to re-verify their employees’ documents.
Although enrollment in E-Verify is required to utilize the new remote document verification rules, employers are not required to enroll in E-Verify. Employers who are not enrolled in E-Verify must physically inspect its newly hired employee’s documents. Employers who were not enrolled in E-Verify during the COVID-19 pandemic and utilized the COVID-19 remote document inspection rules must complete an in-person physical examination of all remotely verified employees’ documents by August 30, 2023.
The new rules give both employers and employees choices. Employers who are eligible to participate in the new remote document verification may choose to utilize remote verification for some worksites and physical inspection for others. Employees have a choice too. Employers may not compel newly hired employees to remotely verify their documents. Employees may elect to physically present their documents to the employer.
Finally, DHS published a new version of Form I-9. The new version streamlines the form, updates the kinds of documents employees may present to reflect current law, and takes two lightly used sections of the form and turns them into supplements. The preparer/translator certification section and re-verification section are now supplements. This change is particularly useful for employers of nonimmigrant visa holders or employment authorization document holders who need to re-validate the I-9 form upon the extension of the visa/employment card. Instead of creating a new form or memorandum noting the extension of employment authorization, employers can simply complete the supplement.
The new version of Form I-9 will be published on August 1, 2023. Employers may use the October 21, 2019 version of the form until October 31, 2023. On November 1, 2023 employers must use the August 1, 2023 version of the I-9 form.
Employers with questions regarding this rapidly changing area of immigration law should consult competent immigration counsel. If you have any questions relating to this blog post, feel free to reach out to the Chair of CDF's Immigration Practice Group, and the author of this blog post, Richard Green.