There have been some developments with respect to the remote inspection of employment eligibility documents and the Form I-9.
Changes to Review Process of Employment Eligibility Documents
On July 25, 2023, the Department of Homeland Security (DHS) published a final rule in the Federal Register, effective August 1, 2023, permitting remote verification of employment eligibility documents by qualified employers. The final rule allows qualified E-Verify employers to use an alternative document inspection procedure, whereby they may complete document verification remotely instead of physically examining the original documents during an in-person meeting with the new hire (or existing employee during reverification). To participate in the remote examination of Form l-9 document, employers must:
• Be enrolled in E-Verify and be in good standing;
• Examine and retain clear and legible copies of all documents;
• Create a live video interaction with the employee during the verification process; and
• Create an E-Verify case if the employee is a new hire.
Further, employers who did not previously participate in E-Verify had 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.
Form I-9 Changes
On August 1, 2023, the United State Citizen and Immigration Services published a revised version of the Form I-9 Employment Eligibility Verification Form. Employers may only use the previous version of the Form I-9 through October 31, 2023. Starting November 1, 2023, employers must use the new form and will be subject to penalties if they use the older form.
The new form includes the following changes:
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Is more user friendly and fillable for use on tablets and mobile devices;
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Moves sections regarding Preparer/Translator Certification and Reverification and Rehire to standalone, separate documents if necessary to submit;
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Replaces the term “alien authorized to work” with the term “non-citizen authorized to work” and differentiates this from a “a noncitizen national;
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Expands the List of Acceptable Documents to include acceptable receipts, in addition to physical documents, and provides guidance and information on automatic extension of the employment authorization document;
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Streamlines and updates the Form I-9 instructions; and
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Includes a checkbox permitting employers enrolled in E-Verify to indicate that they have remotely examined Form I-9 documents under the DHS-authorized alternative procedure rather than through a physical examination.
Forms I-9 must be retained as long as the individual is working for the employer, and for the required retention period after an individual’s employment is terminated, either three years after the date of hire, or one year after the employment ended, whichever is later.
Forms I-9 must also be made available for inspection upon request by officers from DHS, Department of Justice, or the Department of Labor. Employers who fail to comply may be subject to civil and/or criminal penalties.
Takeways
Employers interested in engaging in the remote verification process of employment eligibility documents should immediately enroll in the E-Verify program. Additionally, employers should replace their Forms I-9 to ensure use of the correct version of the form. Employers should also update their practice and procedures and engage in additional training of personnel as necessary to ensure compliance with these new requirements.
This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.
