Is remote verification in the Form I-9 process going away? The question made employers and HR departments sweat well beyond the extreme heat this summer. Now we have a welcome answer: A revised Form I-9 is now active, which allows employers enrolled in E-Verify to remotely examine employee documents under an alternative procedure. It’s a significant development since temporary COVID-19 flexibilities for Form I-9 have expired.
What’s New About the Revised Form I-9?
The revised Form I-9 became available on August 1, 2023. The prior edition of Form I-9 can be used through October 31, 2023. U.S. Citizenship and Immigration Services (UCIS) outlines that on the revised Form I-9:
- Sections 1 and 2 are reduced to a single-sided sheet.
- The form is now fillable on tablets and mobile devices.
- The Section 1 Preparer/Translator Certification area has been moved to a separate, standalone supplement that employers can provide when necessary.
- Section 3, Reverification and Rehire, has moved to a standalone supplement employers can use when necessary.
- The Lists of Acceptable Documents page is revised to include acceptable receipts and “guidance and links to information on automatic extensions of employment authorization documentation.”
- Form instructions are reduced from 15 pages to 8 pages.
- A checkbox allows employers to indicate they examined Form I-9 documentation remotely.
And What About Remote Verification?
That last bullet indicates a recent U.S. Department of Homeland Security (DHS) move to “modernize employment eligibility verification” by keeping some of the remote verification flexibility employers utilized during the pandemic.
“Rather than examining an employee’s identity and employment authorization documents in person, employers who participate in E-Verify and are in good standing will have the option to conduct verification electronically and with a live video call interaction,” DHS states, adding that the process must follow a DHS-authorized alternative procedure. “This important update advances DHS’s mission of safeguarding the integrity of the employment eligibility verification process, while recognizing the realities of the post-COVID economic recovery in which more Americans are working remotely than ever.”
Additionally, the agency announced it’s considering a pilot program that offers the remote examination option to an even broader category of employers, adding that more information about that pilot will be available shortly.
Employers may continue to conduct physical examinations in the meantime. However, those who do not participate in E-Verify were given until August 30, 2023, “to perform all required physical examination of identity and employment authorization documents for those individuals hired on or after March 20, 2020, and who have received only a virtual or remote examination under the COVID-19 temporary flexibilities.”
“Many employers may be unaware of the requirement to re-do the prior virtual examination, and so it is important that this get done ASAP if it hasn’t already been done by the deadline,” states Amy Beckstead, employment attorney at Beckstead Terry Ditto PLLC. “But there is good news: DHS’s decision to allow E-verify employers to utilize remote examination is a definite advantage now for signing up for E-verify, especially for employers that expanded their remote workforce during COVID.”
There are potentially significant penalties and even possible criminal charges for not following these new procedures. However, DHS points out, “If an employer is otherwise compliant with the law and regulation – and had followed the COVID-19 flexibility guidance – U.S. Immigration and Customs Enforcement (ICE) will generally not focus its limited enforcement resources on Form I-9 verification violations for failing to complete physical document examination by August…particularly where the employer can show that it has taken timely steps to complete physical document examination within a reasonable period of time.”
In any case, time is ticking on adopting the procedures and the revised Form I-9, so if you’re unclear about any new requirements, don’t hesitate to ask your attorney. If these types of employment processes are getting unruly or your staffing needs are expanding beyond what you’re set up to handle, consider outsourcing your staffing (and much of this legwork!) to a reputable firm like The HT Group.
