Qualified E-Verify users in good standing now have the option to verify I-9 forms remotely, but how to document compliance isn't clear. Employers should avoid overdocumentation, legal experts caution. In addition, employers choosing to record video verification sessions or take screenshots of the documents shared over video chat should inform employees in advance and get their consent to do so. But recording the video chat may not be necessary.
Background
Remote verification of identification and work authorization documents associated with Form I-9 became an alternative option for qualified E-Verify users in good standing as of Aug. 1.
To be in good standing with E-Verify, employers must:
- Have enrolled in E-Verify for all hiring sites that use the remote alternative procedure.
- Be in compliance with all E-Verify program requirements, including verifying the employment eligibility of newly hired employees.
- Continue to be a participant in good standing in E-Verify at any time the employer uses remote verification.
New E-Verify employers and any users who manage and create cases must complete an E-Verify tutorial that includes fraud awareness and anti-discrimination training.
Document Retention
Employers are required to retain clear and legible documentation of documents in the I-9 documentation process if they use remote verification.
During a live video interaction with the new hire, the employer watches as the employee completes Section 1 of Form I-9, then uploads and sends the form to the employer.
The live video chat can be on Zoom or FaceTime, or some other method; there's no specification by the U.S. Department of Homeland Security (DHS), said Kate Kalmykov, an attorney with Greenberg Traurig in Florham Park, N.J., and New York City.
During the live video chat, the employer interacts with the employee, who holds up the original employment verification document to the camera, and the employer inspects it, said Kelli Duehning, an attorney with Berry Appleman & Leiden in San Francisco, speaking during the "SHRM Government Affairs: Form I-9 First Word Alert Webcast" on July 27.
"The employer should not overdocument," cautioned Eileen Scofield, an attorney with Alston & Bird in Atlanta. Overdocumentation might be interpreted as evidence of an employer having requested or required more documents than needed because of citizenship or national origin of the employee, she said.
Even if it's not a sign of intentional discrimination by the employer, overdocumentation can lead to a lengthy U.S. Department of Justice/Immigrant and Employee Rights Section investigation, Scofield said.
"More is not better," Scofield stated. "A concern is when the employee electronically sends too many documents; now the employer has more copies than required. Also, perhaps [the employer] has information related to citizenship or national origin."
Accordingly, the employer needs to give every employee clear, uniform guidance and have a standard protocol to address when an employee provides too many documents, she said.
Employees can present any document or combination of documents from the DHS' list of acceptable documents, said Kerri-Ann Griggs, an attorney with Alston & Bird in Atlanta.
"They are not required to present a Social Security card or passport specifically. The decision is exclusively theirs on which documents they choose to present, provided they are permitted by DHS' list of acceptable documents," she said. "An employee can though demand that instead of the alternative procedure of remote verification that the employer use the normal physical inspection process for their I-9 completion."
The I-9 document retention regulation remains the same. It requires documents to be retained for one year from date of termination or three years from the date of hire, whichever is longer, said Kathleen Campbell Walker, an attorney with Dickinson Wright in El Paso, Texas.
Record the Video Chat?
If an employer chooses to record the live video chat, state laws on data privacy and consent may apply, Walker said.
"Privacy rules vary from state to state, most states require disclosure [and] some states require audio disclosure," Scofield said. Illinois, for example, has a biometric privacy law that can result in large damage awards, she noted.
Scofield also recommended that prior consent be obtained from the employer representatives.
"Moreover, if a recording process is adopted, the employer must be sure that the policy and practice is based on nondiscriminatory reasons," she said.
Trying to document that the video chat occurred is an internal compliance decision not based on a regulatory evidence requirement, Walker said. "Some employers are considering a check-the-box option on their software for Form I-9 compliance or a short memo in the Form-I-9 compliance file," she said.
The DHS has not indicated that employers maintain a recording of the document review in either video or screenshot format, said John Fay, an attorney and director of product strategy for Equifax Workforce Solutions in Phoenix.
Other than checking off the new I-9 form box designating the use of the alternative remote verification procedure, the U.S. Citizenship and Immigration Services is not asking for proof that the video examination of documents took place, said Greg Berk, an attorney with Sheppard Mullin in Costa Mesa, Calif. "It appears to be purely an honor system," he said. "The attestation under penalty of perjury presumes compliance."
Recording the interactions may raise a host of issues for employers relating to data privacy and security, Fay said. These issues could "ultimately increase the burden on HR departments choosing to use this new option," he stated.
Nevertheless, some employers may wish to implement additional tracking and documentation procedures around their use of the new virtual process to help ensure that all the required steps, including the video interaction, are performed consistently for I-9s, Fay said. "But it is important to remember that documenting the live review is currently not a DHS requirement, and so employers should discuss this process with their counsel," he added.
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