Remote Examination of I9 Documents Allowed under Proposed DHS Rule

On July 21, 2023, DHS released early a proposed rule (official release coming on July 25) (click here) that will allow an optional alternative for employers to remotely examine Form I-9 documentation. The new DHS alternative authorizes employers enrolled in E-Verify the option to remotely examine their new hires’ identity and employment authorization documents. The new DHS option allows remote examination of the Form I-9 documents, instead of the current requirement to examine documents in person. To participate in the remote examination of Form I-9 documents under the 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.

The alternative procedure is available only to qualified employers, meaning those employers who are participants in good standing, in E-Verify. Good standing means an employer has enrolled in E-Verify for all its U.S. hiring sites and the employer is in compliance with all requirements of the E-Verify program (including verifying the employment eligibility of newly hired employees). An employer must consistently offer the alternative procedure to all new employees at an E-Verify hiring site. However, an employer may still choose to continue to apply physical examination procedures to all employees who work onsite.

In addition to the consistent, legal use of the E-Verify system, a qualified employer must also:

  • Conduct a live video interaction after the employee transmits a copy of the document(s) to the employer.
  • Examine copies (front and back, if the document is two-sided) of Form I-9 documents or an acceptable receipt12 to ensure that the documentation presented reasonably appears to be genuine.
  • Retain a clear and legible copy of all documents presented by the employee.
  • Indicate on Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2.
  • Take an E-Verify tutorial (free) that includes fraud awareness and anti-discrimination training.
  • In the event of an audit, make available clear and legible copies of the identity and employment authorization documentation presented by the employee.

Qualified employers may use the alternative procedure starting on August 1, 2023.

The alternative procedure can also be used to satisfy the physical inspection requirement for I9s completed under special COVID-19 temporary rules. Qualified employers that 1) were enrolled in E-verify at the time they performed a remote examination of an employee’s Form I-9 documentation for Section 2 while using the COVID-19 flexibilities, 2) created an E-Verify case for that employee, and 3) performed the remote inspection between March 20, 2020, and July 31, 2023, …. can use the alternative procedure to satisfy the required physical examination of the employee’s documents for that Form I-9.

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