Department of Homeland Security Provides Certainty For I-9 Employment Verification

On July 21, 2023, the USCIS gave employers a new option for verifying employment eligibility. Effective August 1, 2023, employers have an alternative procedure by which qualifying employers may inspect employees’ Form I-9 documentation virtually as opposed to performing a physical verification. This physical examination was required for all new hires until the COVID-19 exception was created in March 2020. During the COVID-19 pandemic employers were temporarily permitted virtual, remote verification for remote employees. This option was initially supposed to end July 31,2023.

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.

What is E-Verify?

E-Verify is a free, easy-to-use web-based system operated by DHS in partnership with the Social Security Administration. The system enables participating employers to electronically verify the employment eligibility of their employees. Current regulations for the Form I-9 require that, within three business days after the first day of employment, employers must physically examine the Form I-9 documentation presented by new employees to ensure that the documentation appears to be genuine and related to the individual who presents it.

This alternative virtual verification procedure is available only to qualified employers.

Such employers are:

• In good standing in the E-Verify program;
• Enrolled in E-Verify for all hiring sites in the United States, for which they seek to use the alternative procedure;
• Have complied with all E-Verify requirements, including verifying the employment eligibility of newly hired employees in the United States; and
• Have completed an E-Verify tutorial/training concerning fraud awareness and anti-discrimination. 

To utilize the alternative virtual verification, qualified employers must:

• Examine remotely the front and back of their employees’ identity and employment authorization documentation or acceptable receipt to determine that the documentation reasonably appears genuine;
• Conduct a live interaction with the employee presenting the same documentation discussed above to ensure the documentation reasonably appears to be genuine and relate to 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 or for reverification, as applicable;
• Retain clear and legible copies (front and back) of all documents presented by employees; and
• In the event of Immigration & Customs Enforcement (ICE) I-9 audit or relevant federal government agency investigation, make available clear and legible copies of documentation presented by the employee for document examination in connection with the employment eligibility verification process.

It is important to note that those employers that are qualified have a choice to use the alternative virtual verification or not. Also, this procedure only applies to remote employees; it does not apply to employees who work onsite or have a hybrid arrangement. Further, employers must maintain a non-discriminatory basis for its decision-making.

Employers who are not currently participating in E-Verify

These employers may enroll in E-Verify, take the tutorial-course as mentioned above, and begin to utilize the alternative virtual verification procedure after August 1, 2023.

The alternative virtual verification procedure may be used instead of physical examination of an employee’s Form I-9 only if they:

• Enrolled in E-Verify at the time of remote examination of the employee’s Form I-9 while using the COVID-19 flexibilities,
• Created an E-Verify case for that employee (unless for reverification); and
• Performed remote inspection between March 20, 2020 and July 31, 2023.
   

Employers who do not participate in E-Verify

Employers who do not participate in E-Verify have until August 30, 2023, as previously announced, 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.

A new one-page version of Form I-9 will be issued on August 1,2023 to encourage the transition to permanent virtual verification.

Employers will be able to continue using the current Form I-9 until October 31, 2023, after which the new form becomes mandatory.

It is important to note

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 30, 2023, particularly where the employer can show that it has taken timely steps to complete physical document examination within a reasonable period of time.

Have questions about E-Verify or your company’s I-9 verification process? Contact us for expert assistance.