Providing Developments & Insight on Trending Topics in Employment Law

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Providing Developments &amp; Insight on Trending Topics in Employment Law

The Department of Homeland Security (DHS) recently announced important changes to the I-9 process, including the addition of a remote verification option of I-9 documents and an updated Form I-9.

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Beginning on March 20, 2020, DHS granted employers permission to conduct remote verification of I-9 documents for new hires in certain scenarios. In May of this year — concurrent with the end of the COVID-19 Public Health Emergency — DHS notified employers that this temporary flexibility was ending on July 31, 2023, and they were instructed to conduct in-person verification for all employees whose I-9 documents were remotely verified no later than Aug. 30, 2023. In a welcome development, on July 25, DHS announced a new option that authorizes employers that are registered for E-Verify to inspect I-9 documents remotely (via live video) rather than in person. Employers that relied on the COVID-19 flexibilities, were participating in E-Verify at the time of the initial I-9 completion, and created E-Verify cases for new hires during this period can use this new remote verification procedure to complete the required physical inspection of employees’ I-9 documents.

To use this new remote verification option, employers must complete the following steps:

Obtain and examine copies (front and back, if the document is two-sided) of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine.

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Retain, in line with DHS’s current regulations, a clear and legible copy of the documentation (front and back, if the documentation is two-sided) in a manner that can be presented in an I-9 audit or investigation.

After reviewing the documents, conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and relates to the individual. The employee must first send a copy of the document(s) to the employer and then <strong><u>present the same document(s)</u></strong> during the live video interaction.

Indicate on the Form I-9, by either writing “Alternative Procedure” in the Additional Information field on the previous version of the Form I-9 (which will expire on Oct. 31, 2023) or by checking the box in the additional information field on the new I-9 form, to indicate that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable.

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Employers that use the remote verification option for new hires must, within three business days of an employee’s first day of employment, create a case in E-Verify and follow the steps outlined above.

E-Verify employers that choose to offer the remote verification option must do so consistently. In other words, remote verification cannot be offered to one employee or a specific subset of employees at a work site; rather, the option must be made available to all employees at specific work sites. However, E-Verify employers can offer remote verification to remote hires only and require all employees hired to work on-site or in a hybrid capacity to follow the standard physical examination procedures.

Finally, on Aug. 1, the U.S. Citizenship and Immigration Services released a new version of Form I-9. The new version consolidates Sections 1 and 2 of the I-9 to a single page and moves the preparer/translation certification and reverification and rehire section to separate addendum pages that employers can add as needed. This welcome change to the form also includes revisions to the list of acceptable documents page to address some acceptable receipt options along with guidance and links to information on automatic extensions of employment authorization documents.

Each of these changes, in isolation, is a substantial update to the I-9 process, but in combination they represent a volume of changes and updates that have not been seen in many years. These changes present a great opportunity for employers to conduct an internal audit of their I-9 records to ensure that their records are in compliance and that their training programs, policies, and practices could not be viewed as having a discriminatory purpose or have the effect of treating employees differently based on their citizenship, immigration status, or national origin.

I-9 Remote Document Verification and Ending of COVID-19 I-9 Flexibilities