Physical Inspection of I-9 Documents Returns in August 2023
By Amy Kangas Alexander | Related Practice: Employment
August 1, 2023 update: The U.S. Citizenship and Immigration Services (USCIS) revamped the Form I-9 and announced rules permitting remote inspection of I-9 employee documentation in certain circumstances. The new Form I-9 is available here: https://www.uscis.gov/sites/default/files/document/forms/i-9.pdf. Employers may begin using it on August 1, 2023, and must exclusively use the new form starting November 1, 2023.
Remote inspection of Form I-9 documents will now be available only for employers who are enrolled in E-Verify. Under this so-called “alternative procedure,” an employer must, within three days of hire:
- Examine copies of Form I-9 documents (front and back) to ensure they appear genuine;
- Conduct a videoconference with the employee, during which the employee presents the same Form I-9 documents while the employer or its agent evaluates whether the documentation appears genuine and related to the employee; and
- On the new Form I-9, check the box indicating that an alternative procedure was used to complete Section 2.
Employers must retain copies of Form I-9 documents consistent with existing regulations.
Consistency is key under the alternative procedure to avoid discrimination based on an employee’s protected characteristics such as citizenship, immigration status, or national origin. If an employer uses the alternative procedure at an E-Verify hiring site, it must use that procedure for all hires at that site. However, an employer can employ remote inspection with remote-only employees while requiring in-person inspection for employees who work onsite.
If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorney listed or contact a member of Stokes Lawrence’s employment group.
The end of the COVID-19 public health emergency also brings the end of the ability for employers to remotely review employee documentation for the Form I-9. During the COVID-19 public health emergency, the Department of Homeland Security (DHS) and Immigration Customs and Enforcement (ICE) temporarily suspended the requirement of in-person physical verification of I-9 eligibility documents for remote workplaces and employees. These so-called COVID-19 flexibilities end in August.
If your company has been relying on COVID-19 flexibilities, it is time to return to physical verification for new employees and amend I-9s completed under COVID-19 flexibilities.
Key Deadlines
- Companies onboarding new employees must return to in-person physical inspection by August 1, 2023.
- Companies that have onboarded employees since March 20, 2020 without in-person physical verification of I-9 qualifying documents must revise those I-9s with in-person physical verification. The deadline for completing this review is August 30, 2023.
Strategies for Remote Verification
Many companies continue to have employees working remotely all over the county. These employers must still go through the in-person document verification process. If it is not practical to verify documentation in the same location as the employee, an employer can choose an authorized representative to fill out the employer portion of the Form I-9 and complete the in-person inspection.
An authorized representative could include a notary designated by the employer or a third-party agency. It can even include an adult friend or family member, though employers will be responsible for any violations or errors in the Form I-9.
Additional Resources
USCIS provides examples on how to notate physical verification on Form I-9 in various scenarios: https://www.uscis.gov/i-9-central/form-i-9-examples-related-to-temporary-covid-19-policies
USCIS Q&A on physical verification: https://www.uscis.gov/i-9-central/form-i-9-related-news/questions-and-answers-related-to-covid-19
