Beginning August 1, 2023, the U.S Department of Homeland Security and U.S. Citizenship and Immigration Services (USCIS) have now established a new procedure to allow employers who participate in E-Verify and are in good standing, to conduct remote inspection of an employee’s documents when completing Form I-9. USCIS has also released an updated version of Form I-9 that all employers must use for new hires in the U.S. going forward.
During the COVID-19 pandemic, USCIS adopted (and repeatedly extended) a temporary policy allowing for remote inspection of employee documents that ended on July 31, 2023, with a requirement that employers perform all required physical examination of documents by August 30, 2023. The new remote inspection regulation is a permanent remote inspection option, but requires participation in E-Verify.
New remote completion procedure for E-Verify employers
Under federal law, employers must ensure that Form I-9 is timely completed to document verification of the identity and employment authorization for each new employee working in the United States. Section 1 of Form I-9 must be completed by the new employee on or before the employee’s first day of hire (but not before an offer has been accepted). Section 2 of Form I-9 must be completed by the employer (or its authorized representative) within 3 business days of the employee’s first day of work for pay.
Under current federal regulations, when completing Section 2 of Form I-9, the employer (or its authorized representative) must physically examine the documents presented by the employee in the employee’s presence to ensure that the documents reasonably appear to be genuine and relate to the employee. This physical examination requirement has sometimes presented a challenge for employers, particularly when hiring remote employees.
Under USCIS’s new remote inspection process, an employer who is enrolled in E-Verify and in good standing may conduct a remote inspection by: (1) obtaining and examining clear, legible copies of documents (front and back), (2) after receiving the copies, conducting a live video interaction with the employee presenting the documents to assess genuineness, (3) indicating on Form I-9 the employer has used the remote inspection procedure consistent with Form I-9 Instructions, (4) retaining copies of the documentation with the Form I-9, and (5) completing an E-Verify case and following E-Verify completion procedures.
Employers have the option to use this alternative remote inspection procedure for either all employees at an E-Verify hiring site or for all remote employees at the E-Verify hiring site. For example, an eligible employer may choose to continue physically examining documents for on-site and hybrid workers but use the remote inspection procedure only for remote employees. Nonetheless, an employer must use the procedure consistently at an E-Verify hiring site and may not use it for some remote employees but not other remote employees.
New version of Form I-9 for all employers
Employers should begin using the new version of Form I-9 with a version date of “08/01/23” (available here) for new hires immediately and must stop using the old version no later than October 31, 2023. Some of the notable changes in this new version of Form I-9 are:
- A checkbox for employers who use USCIS’s new remote inspection process to indicate they examined the Form I-9 documentation remotely rather than physical examination.
- A revised List of Acceptable Documents to now include some acceptable receipts as well as guidance and links to assist employers with information on automatic extensions of employment authorization documentation.
- Section 1 and Section 2 are now on a single-sided sheet.
- The Section 1, Preparer/Translator Certification is now on a separate, standalone supplement to be used only when necessary.
- The Section 3, Reverification and Rehire is now a standalone supplement to be used only when necessary.
- Revised Form I-9 Instructions that are now 8 pages rather than 15 pages. (Note that an employer is required to provide the Form I-9 Instructions with the Form I-9 to an employee when requesting the employee complete Section 1.)
In light of these developments, employers should review their Form I-9 document inspection practices. If you have questions on this update, need assistance enrolling in E-Verify or developing policies and procedures related to Form I-9 and E-Verify compliance, or have other questions regarding your workforce, please contact Noah Oberlander at firstname.lastname@example.org or the Reed Smith lawyer with whom you normally work.