Immigration Law Insights

DHS Announces Remote I-9 Document Procedure for E-Verify Employers

Beginning August 1, 2023, E-Verify employers will be eligible to utilize an alternative remote document verification procedure when completing Section 2 of Form I-9.  The DHS announcement is welcome news for E-Verify employers, many of whom became accustomed to temporary remote document verification procedures during the COVID-19 pandemic.  According to DHS, over 1 million employers covering more than 2.4 million hiring sites are currently enrolled in E-Verify.  Thousands of additional employers may consider enrolling in E-Verify in the coming months to take advantage of the new rule.  The new rule is particularly beneficial for employers located in E-Verify mandatory states (including most or all employers in Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Utah).  Before deciding to utilize the new rule, there are some key components with which employers should familiarize themselves.   

Employer Eligibility

In order to qualify for the new rule, an employer must be both enrolled in and in compliance with all requirements of the E-Verify program at all hiring sites the employer seeks to use the new procedure.  The employer must also remain in good standing in E-Verify at all times during which the employer uses the new procedure.

What is the “Alternative” Procedure?

Employers are typically required to physically examine Form I-9 documentation presented by a new employee and complete Section 2 of the from within three business days of the employee’s first day of employment.  Under the new “alternative procedure,” eligible employers may utilize the following process for employees hired on or after August 1, 2023:

1. Request and obtain legible copies (front and back) of acceptable I-9 documentation (i.e. either one List A document or a combination of one List B and one List C document) from the new employee;
2. Review the copies provided and ensure the documents relate to the employee and are reasonably genuine on their face;
3. Conduct a live video interaction with the employee, during which the employee must present the same document(s) previously transmitted so the employer can again confirm the documents relate to the employee and appear reasonably genuine on their face;
4. Complete Section 2 of Form I-9;
5. Indicate on Form I-9—either by checking the corresponding box on a new version of the form to be released August 1, 2023 or noting “alternative procedure” in the Additional Information box of the current form version—that the new procedure was utilized; and
6. Retain clear and legible copies of all documents presented (front and back if two-sided). These copies must be retained in case of audit.

Under some circumstances, DHS is permitting E-Verify employers to utilize the alternative procedure to meet the August 30th physical document review deadline for Form I-9s completed under the COVID-19 flexibilities.

Which Employees May Be Offered the New Procedure?

Eligible employers may offer the alternative procedure to employees hired on or after August 1, 2023 at an E-Verify hiring site, although they are not required to do so.  If offering the new procedure at a site, employers must generally do so consistently for all employees at that location.  However, DHS allows for a distinction between remote and other employees.  Specifically, qualifying employers can choose to only offer the alternative procedure to remote hires while continuing to apply traditional physical inspection procedures to other employees who work onsite or in a hybrid capacity.  As with any employment-related decision, employers should ensure the reason for such a distinction is not based on a protected characteristic.  

What is the Catch?

While the new rule provides welcome flexibility in completing Form I-9s, it also comes with potential pitfalls.  For example, DHS confirms employees cannot be forced to use the new procedure.  If an employee requests the traditional physical inspection procedure, the employer must oblige.  Given utilization of the new procedure also requires E-Verify compliance, the new rule may also bring focus to E-Verify during I-9 audits.  

Burr & Forman’s immigration team regularly advises clients on all aspects of immigration compliance, including I-9 and E-Verify issues.  If your business has questions regarding immigration compliance, contact Melissa Azallion Kenny (MAkenny@burr.com); Anna Scully (Ascully@burr.com); or Jon Eggert (JEggert@burr.com) on the Burr & Forman LLP immigration team.