DHS Allows Virtual Document Review for Form I-9, Will Publish a New Form I-9

For decades, employers have been confused and frustrated by the “physical review” requirement for Form I-9 documentation. Especially as technology has become more advanced, employers have struggled to understand why they must meet, in person, with every new hire and hold that new hire’s documentation in hand prior to completing the Form I-9.

This confusion may now (mostly) be over. While employers and legal counsel alike may continue to argue that physical review does not necessarily require in-person review, tomorrow, July 25, 2023, the Department of Homeland Security will publish a final rule in the Federal Register reflecting a compromise and offering a great deal of clarity.

Under the new rule, employers can avoid in-person document review meetings by reviewing documentation pursuant to an alternative procedure if they meet certain requirements. To be eligible to use the virtual verification procedure, employers must meet the following requirements:

• The employer must be enrolled in, and in good standing with, E-Verify.
  • The employer need not be enrolled at every hiring site across the U.S. but must be enrolled at every hiring site that allows virtual verification under the alternative procedure.
  • The employer must offer the alternative procedure on a consistent basis – either to all new hires and for all reverifications at a hiring site, or to none. The only exception is that the employer may opt to use the alternative procedure only for remote employees.
• The employer’s E-Verify users must have undergone an E-Verify tutorial, which includes fraud awareness and antidiscrimination training.
• The employer must obtain and retain clear copies of the front and back of the documentation presented by the employee for Form I-9 purposes.
• After the employee transmits a clear copy of the documentation, the employer must conduct a live video interaction with the employee in which the employee displays the documentation.
• Employers meeting all of the above requirements will no longer be required to conduct in person meetings with new hires to complete the Form I-9.

Employers completing the new version of the Form I-9, which can be used on or after August 1, 2023, but which must be adopted by employers by November 1, 2023, will have access to a new check box. This check box will give the employer the opportunity to indicate that the Form I-9 was completed pursuant to the alternative procedure.

Employers continuing to use the previous version of the Form I -9 may still use the alternative procedure and should indicate its use in the additional information field in Section 2 of the Form I-9.

What does this mean for employers who must conduct I-9 updates after COVID?
Does this constitute a bridge or are those I-9s somehow grandfathered?

Many employers who complied with temporary I-9 flexibilities due to the COVID-19 pandemic are facing a deadline of August 30, 2023, to conduct in-person review of Form I-9 documentation. Employers who conducted virtual review of I-9 documentation for employees who were working remotely due to the pandemic are eligible to conduct their I-9 updates using the alternative procedure if:

• Remote/virtual document inspection took place between March 20, 2020, and July 31, 2023;
• The employer was enrolled in E-Verify at the time that they completed virtual document examination – usually at the time of the individual’s hire or reverification; and
• The employer completed an E-Verify query for the new hire – not applicable for reverification.

In these circumstances, employers can use the alternative procedure to update the I-9s in lieu of in-person document examination. These employers should not create a new case in E-Verify. To comply:

• The employer must obtain and retain clear copies of the front and back of the documentation presented by the employee for Form I-9 purposes.
• After the employee transmits a clear copy of the documentation, the employer must conduct a live video interaction with the employee in which the employee displays the documentation.
• The employer must update the Form I-9 to indicate that the required update to the I-9 was conducted under the alternative procedure. This may be noted in the additional information field in Section 2 of the Form I-9.

Employers who were not enrolled in E-Verify at the time that they conducted a virtual review of I-9 documentation are required to physically examine the employee’s documentation to complete the required I-9 update by August 30, 2023. These employers cannot avoid in-person review by registering for E-Verify at this time, as they would be prohibited from running E-Verify queries for the existing employees in question.

All this and a New Form I-9?

Yes. A new Form I-9 will be published on Tuesday, July 25, 2023. The form can be used by employers starting on August 1, 2023. Employers must begin using it on or before November 1, 2023.

While we do not know exactly what it will look like, we know that it will – for most employees – be a one-page Form I-9. By removing from the main form what used to be the preparer/translator section and what used to be Section 3, both of which become supplements to be used only when applicable, United States Citizenship and Immigration Services has reduced Sections 1 and 2 to a single page.

Other notable changes:

• USCIS will stop referring to individuals as aliens, changing the prior citizenship status category from “alien authorized to work” to “noncitizen authorized to work.”
• The instructions will no longer require individuals to input N/A in many field, allowing them to be left blank as applicable.
• The lists of acceptable documents (LOAD) will be updated to include certain receipts, as well as guidance and links to information about acceptable alternatives not listed on the LOAD.
• The form will include a check box for employers to indicate that document review was conducted under the alternative procedure outlined above in lieu of in-person review.

Final Thoughts

This is the most extensive and exciting update to the Form I-9 process, and to the form itself, that we have experienced in a very long time, perhaps even since the Form I-9 was originally published. USCIS has taken major steps to modernize the process.

Employers will undoubtedly have questions about the new Form I-9 and virtual review. Please contact nkersey@boselaw.com with yours.