As of November 1, 2023, employers are required to use the revised Form I-9 Employment Eligibility Verification form. This form includes a reference to an August 1, 2023 edition date.
Importantly, the U.S. Citizenship and Immigration Services, in the published revised form included a box where employers who are enrolled in E-Verify can indicate that they have remotely examined the identity and employment authorization documents of their employees by using an alternative procedure authorized by the Department of Homeland Security.
The alternative procedure entails the following:
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:
- 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 (per Step 1 above) 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); and
- If there is 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.
Qualified employers do not need to use the alternative procedure, but if a qualified employer chooses to use 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, a qualified employer may choose to offer the alternative procedure for remote hires only, but continue to apply the physical examination procedures to all employees who worked onsite or in a hybrid capacity — provided that the employer does not do so for a discriminatory purpose or treat employees differently based on a protected characteristic.
Marc Engel is an employment attorney committed to proactively helping for profit and nonprofit employers minimize the risk of employment claims. For more information about harassment training, contact Marc at 301-657-0184 or [email protected].
