The Department of Homeland Security (DHS) announced a new alternative procedure to the physical examination of I-9 documents. Beginning August 1, 2023, employers who participate in E-Verify and are in good standing will have the option to conduct verification electronically with a live video call interaction. This new final rule was published in the Federal Register on July 25, 2023 and it outlines the new alternative procedure in detail.
To participate in the remote examination of Form I-9 documents under the new DHS-authorized alternative procedure, employers must be enrolled in E-Verify, examine and retain copies of all documents, conduct a live video interaction with the employee, and create an E-Verify case if the employee is a new hire.
This new rule comes on the heels of the government's May announcement that COVID-19 temporary flexibilities for Form I-9, Employment Eligibility Verification, will end on July 31, 2023 and that employers must complete in-person physical document inspections for employees whose documents were inspected remotely during the temporary flexibilities by August 30, 2023.
Under this newly announced final rule, employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (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 by Aug. 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must still complete an in-person physical examination by Aug. 30, 2023.
The remote alternative procedure is optional. While employers who wish to take advantage of the new DHS-authorized remote procedure must be enrolled in E-Verify, E-Verify employers are not required to use the new procedure. The final rule provides significant detail regarding the new alternative procedure, including for example, which E-Verify employers are considered to be "in good standing" and eligible to utilize the new procedure, whether the procedure must be implemented uniformly for all employees at an employer site, as well as guidance regarding I-9 completion using the new procedure. Stay tuned, we will answer all these questions and provide detailed guidance regarding how to implement the new rule shortly.
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