Introduction
On August 1, the Department of Homeland Security (DHS) introduced a game-changing rule that allows employers participating in E-Verify to conduct virtual inspections for Form I-9. This modification aims to enhance efficiency, reduce paperwork burdens, and streamline the hiring process for businesses nationwide, especially for the rising remote workforce.
During the height of the COVID-19 pandemic, the USCIS recognized the difficulties faced by employers in conducting in-person Form I-9 inspections. The USCIS temporarily relaxed the regulations, allowing for remote verification of employee documents. This flexibility enabled employers to maintain compliance with employment eligibility verification requirements while adhering to health and safety protocols during the pandemic.
As the situation improved and the world adjusted to the pandemic, USCIS announced that the temporary COVID-19 flexibilities would end on July 31, 2023. Consequently, employers were advised to return to the traditional practice of conducting in-person inspections by August 31, 2023. However, this requirement raised concerns about potential disruptions in the hiring process, especially for employers managing remote or geographically dispersed teams.
Recognizing the value and efficiency gained from remote Form I-9 inspections during the pandemic, a new rule has been introduced to allow eligible employers to continue using this method beyond July 31, 2023. This update acknowledges the changing landscape of the modern workforce and the need for flexible verification procedures that accommodate remote work arrangements.
Eligibility Criteria for Remote I-9 Inspections
To qualify for remote Form I-9 inspections, employers must meet specific eligibility criteria, including:
Employers must be enrolled in E-Verify and remain in good standing and compliance with all requirements of the E-Verify program.
Employers must complete an E-Verify training as part of the E-Verify enrollment process.
Employers must use the alternative procedure consistently for all employees at a given worksite or use it only for remote employees, so long as the employers do not "adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin."
For employers opting for the alternative verification method, they must perform the following tasks within three (3) business days of an employee's start date:
Examine all Form I-9 documents to ensure they "reasonably appear to be genuine."
Conduct a live video interaction with the employee to verify the documents presented.
Check a designated box on the updated Form I-9 indicating the use of an alternative procedure for document examination.
Retain a "clear and legible" copy of the documentation, including both sides of any double-sided documents, for record-keeping purposes.
Create an E-Verify case if the employee is a new hire.
Qualified E-Verify employers have the option to utilize the alternative verification method to fulfill the necessary physical examination of an employee's documents for Form I-9 if they meet the following conditions:
They were enrolled in E-Verify when they conducted a remote examination of an employee's Form I-9 documentation for Section 2 or re-verification during COVID-19 flexibilities.
They generated an E-Verify case for that specific employee (except for re-verification).
The remote inspection of the documents took place between March 20, 2020, and July 31, 2023.
Understanding E-Verify
For those unfamiliar, E-Verify is a no-cost internet-based system that allows employers to confirm the eligibility of their employees to work in the United States. It works by cross-referencing the information provided in an employee's Form I-9 with records maintained by the Department of Homeland Security (DHS) and the Social Security Administration (SSA).
Updated Form I9
On August 1, 2023, USCIS released a revised version of Form I-9. Employers can continue using the current Form I-9 (edition date 10/21/2019) until October 31, 2023. However, starting November 1, 2023, employers must use the new Form I-9 (edition date 8/01/2023) for all employment verification purposes.
The updated Form I-9 introduces user-friendly enhancements, enabling completion on tablets or mobile devices. The form's length has been condensed to a single-sided sheet. The Preparer/Translator Certification and Reverification and Rehire areas moved to stand-alone supplements, while the instruction pages have been reduced from fifteen to eight pages. Additionally, USCIS has revised the Lists of Acceptable Documents, incorporating specific receipt notices, and provided guidance on the automatic extension of certain Employment Authorization Documents (EADs). These changes aim to streamline and simplify the employment verification process.
Next Steps
To ensure a smooth transition to E-Verify's remote verification option, thoroughly evaluate its advantages and disadvantages for your company. This assessment will help determine if leveraging the remote verification option aligns with your organization's needs. Next, update your internal business processes associated with Form I-9s and E-Verify, using the revised Form I-9, documenting the new procedures for remote inspections, and assigning clear responsibilities to designated personnel. Provide comprehensive training to managers, HR personnel, and staff involved in the Form I-9 process. Similarly, offer updated training to all individuals involved in the E-Verify process, covering the remote verification option and data handling protocols. Lastly, review and update all remote inspections conducted since March 2020, ensuring compliance with USCIS guidelines by August 1, 2023.
Please reach out to your THRM HR consultant for support.