Remote Verification of I-9s Becoming Available for Qualified E-Verify Users

[Editor's note: The new I-9 form is now available.]

​Remote verification of identification and work authorization documents associated with Form I-9 will be an alternative option for qualified E-Verify users in good standing starting Aug. 1. That date is also when the new I-9 form will be available to download.

"The regulatory process worked as it should," said Eileen Lohmann, an attorney with Berry Appleman & Leiden in Washington, D.C., during the "SHRM Government Affairs: Form I-9 First Word Alert Webcast" on July 27.

The federal government responded to comments from employers and SHRM, who asked that remote verification allowed during the pandemic be made permanent.

"SHRM enthusiastically welcomes this new development, as we have been advocating for a remote Form I-9 verification process for years, particularly over the last three years with the implementation of the COVID-19 flexibilities," said Emily M. Dickens, SHRM's chief of staff and head of public affairs. "The Remote Form I-9 Alternative Procedure reflects the modern reality of the American workforce and HR processes and takes account of current and emerging technology—all while investing in the integrity and the security of the U.S. immigration system."

Background

A lot has happened in the Form I-9 space in the past few years, so it's understandable if employers are feeling overwhelmed, Lohmann said.

On March 20, 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to the pandemic. Employers with remote employees were allowed to obtain, remotely inspect and retain copies of the identity and employment eligibility documents their employees provided to complete Section 2 of Form I-9. This provision applied only to employers and workplaces that were operating remotely.

This was followed by U.S. Citizenship and Immigration Services seeking information from employers on experiences with ICE's temporary flexible policy. The DHS posted a proposed rule on alternative procedures in its regulatory agenda.

Last year, a new one-page I-9 form was proposed. Additionally, ICE published a proposed rule to formalize the authority of the Secretary of Homeland Security to extend flexibilities, provide alternative options, or conduct a pilot program that would permit remote inspection of employee identity and employment authorization documents. ICE received over 500 comments on the proposed rule, most of which urged it and DHS to implement a remote verification option.

Then, on May 4, ICE announced it would wind down the temporary policy related to pandemic flexibilities. An ICE press release said the flexibilities would sunset on July 31 and employers would have to conduct physical documentation review for those workers hired under the flexibilities.

The pandemic flexibilities are still set to sunset, and the Aug. 30 deadline is still in place for employers who are not eligible under the alternative procedures. However, an employer will not be required to physically examine the documentation associated with a Form I-9 if it 1) was enrolled in E-Verify at the time of hire; 2) created an E-Verify case for that employee; and 3) performed the remote inspection between March 20, 2020, and July 31, 2023.

The ideal solution would have said that employers using E-Verify and conducting video live chats to complete I-9s during the pandemic didn't have to do anything by Aug. 30, Lohmann said. But instead, the government met employers in the middle and is requiring them to either conduct physical inspections of I-9s for those that were remotely inspected from March 20, 2020, to July 31, or conduct video live chats again by Aug. 30.

Remote verification for qualified E-Verify users in good standing was announced July 21 in a final rule that appeared in the July 25 issue of the Federal Register.

Who Is Eligible to Use Remote Verification?

Kelli Duehning, an attorney with Berry Appleman & Leiden in San Francisco, said that to qualify to use remote verification, also known as the "alternative procedure," employers must be in good standing with E-Verify. They must:

• Have enrolled in E-Verify for all hiring sites that use the alternative procedure.
• Be in compliance with all E-Verify program requirements, including verifying the employment eligibility of newly hired employees.
• Continue to be a participant in good standing in E-Verify at any time the employer uses remote verification.
  

New E-Verify employers and any users who manage and create cases must complete an E-Verify tutorial—free and accessible as part of the enrollment process—that includes fraud awareness and anti-discrimination training.

If a company is an existing E-Verify employer, it should have already gone through the training and doesn't need to again, though it's a good idea for new HR employees, Duehning said.

How Does Remote Verification Work?

The employer uses the video interaction to remotely review the employee's identity and work eligibility documentation presented for the I-9 verification. At this time, they also compare it to the information entered on Section 1 of the Form I-9 by the employee for accuracy.

On the new I-9, there will be a corresponding box that an employer will check when it is using the alternative procedure for Section 2 or re-verification.

Employers are required to retain clear and legible documentation of all documents presented in the I-9 documentation process if they use remote verification. That will mean more document retention on the E-Verify platform than E-Verify employers have had in the past. Other employers will need to consider the additional space this would take up on hard drives before switching to E-Verify, Duehning said.

If an employer uses remote verification, the alternative procedure must be consistently offered to all employees at a hiring site, with two exceptions, Lohmann said. Remote verification can be used only for remote employees and hybrid workers can be required to have in-person physical verification. Also, an employer must let employees have an in-person physical meeting if that's what they prefer.

Employers can sign up for E-Verify immediately, so long as they are prepared to administer it consistently, Lohmann said.

"Don't rush into it before you can tell whether it will work for you," she said.