New Virtual I-9 Review Option: What U.S. Employers Need to Know

Recently, the U.S. Department of Homeland Security (DHS) and its agencies announced important new policies on the verification of I-9 documentation for remote workers, including the sunset of the temporary Covid-19 (Covid) flexibility policies and a new remote I-9 verification option. This Update reviews the agency policy developments, addresses the pros and cons of the new optional remote I-9 verification option, and provides a number of best practices for companies to integrate the new optional process into their onboarding systems.

Summary

Beginning with the announcement of flexibility policies to accommodate employers whose workforces were suddenly working remotely due to the onset of the pandemic, DHS established a series of policies on the I-9 verification process: 

• Temporary remote I-9 verification option during Covid national emergency: During the Covid pandemic, in recognition of the sudden and substantial shift to remote work in many U.S. employment sectors, DHS announced flexibilities for employers in the I-9 verification process. To address the inability of many employers to perform the required in-person verification of original documentation for new hires due to pandemic precautions, the Covid I-9 flexibilities temporarily provided employers with a virtual option to examine identity and work eligibility documents for the I-9 verification process. The Covid I-9 flexibilities policy was designed as temporary relief measure, where employers could use a virtual verification option for remote employees hired during the pandemic. The expectation was that employers would eventually perform a physical, in-person recertification of employees’ original documents upon their return to the office or when the national Covid emergency ended.

   

• Expiration of Covid I-9 flexibilities: Recently, U.S. Immigration and Customs Enforcement (ICE) announced that the Covid I-9 flexibilities expired on July 31, 2023, and provided a deadline of August 30, 2023, for employers to perform the required in-person recertification of the original identity and employment eligibility documents for employees hired using the remote verification option of the Covid I-9 flexibilities after March 20, 2020.

   

• New permanent virtual I-9 option: Furthermore, on July 25, 2023, DHS issued a Final Rule announcing a new permanent remote I-9 verification option for qualified employers. The agency’s announcement of the permanent remote I-9 process was accompanied by the release of a new I-9 form.   

   

• New Form I-9: U.S. Citizenship and Immigration Services (USCIS) published a new version of the Form I-9 that has been available for use since August 1, 2023 
  • Effective dates: Employers can continue to use the prior version of the Form I-9 until October 31, 2023. On November 1, 2023, employers can only use the new Form I-9.
  • Changes in the new Form I-9:
    • The I-9 has been reformatted to a one page form that includes Sections 1 and 2, with some sections, such as the reverification portion (formerly Section 3), now located in supplements.
    • The Form I-9 now includes a checkbox for employers to mark that they used the new optional remote I-9 verification process.

Considerations for the New Optional Remote I-9 Verification Process

What are the eligibility requirements for a company to be able to use the optional remote I-9 verification process?

To be able to use the optional remote I-9 verification process, your company must be an E-Verify participant in good standing for any hiring site where the remote I-9 process will be used.

Is my company an E-Verify participant in good standing?

To qualify as an E-Verify participant in good standing, your company must meet all of the following requirements:

• The company has enrolled in E-Verify for all of its hiring sites in the U.S. where it will use the optional remote I-9 verification process.
• The company is in compliance with all E-Verify requirements, including submitting timely E-Verify queries for all newly hired employees in the U.S. at the company’s E-Verify locations.
• The company continues to be an E-Verify participant in good standing throughout the period of time the company uses the optional remote I-9 verification process.

What are the benefits of the new optional remote I-9 verification process?

Most importantly, the optional remote I-9 verification process will allow your company to verify the documentation of newly-hired employees working remotely, eliminating the need for such employees to appear in-person at a company office or to meet in-person with an off-site remote document verifier. This new process will allow your company to streamline and centralize the document verification function for all of your locations that use E-Verify.

Will employers who use the new optional remote I-9 verification process face increased scrutiny?

To use the new optional process, employers need to develop and implement procedures that comply with the requirements outlined in the final rule. In the event of an audit, the government will review the company’s I-9s as well as its processes to determine whether the company is in compliance with the requirements. If the government determines that a company did not follow the process or documentation requirements of the new rule, the company will be at risk of a finding of material violations and potential fines.

Is my company required to use the new optional remote I-9 verification process?

No. While some employers may opt to use the new remote process, your company can continue to follow the standard I-9 process of performing an in-person verification of the employee’s original identity and employment eligibility documents during the onboarding process.

Is the new optional remote I-9 verification process temporary or permanent?

While the rule authorizing remote verification of I-9 documents is permanent, the agency has the authority to revise the method and specific protocols of the remote I-9 verification.

Implementing the New Optional Remote I-9 Verification Process as Part of I-9 Program

What steps is my company required to follow under the optional remote I-9 verification process?

A qualified employer who uses the optional remote I-9 verification process will be required to follow these steps within three business days of an employee’s first day of employment:

• Request the employee to provide digital copies of the front and back of the employment eligibility and identity documentation of their choice from the I-9 Lists of Acceptable Documents.
• After receiving the documentation from the employee,
  • examine the copies of the front and back of the employment eligibility and identity documentation
  • determine that the documentation reasonably appears to be genuine
• Schedule and conduct a live video call with the employee to further review the front and back of the employee’s employment eligibility and identity documentation and determine that the documents relate to the employee.
• Annotate Form I-9 by completing the corresponding box indicating that the employer has used the remote I-9 verification process.
• Retain a clear and legible copy of the front and back of the employment eligibility and identity documents provided by the employee in the I-9 file.

Does implementing the optional remote I-9 verification process eliminate or change my company’s requirement to complete an I-9?

No. If your company is eligible to use the optional remote I-9 verification process and opts to implement it for new hires, you will continue to have the same I-9 completion and E-Verify obligations. Your company will still be required to ask the employee to complete Section 1 of the form on or before the first day of employment and to complete Section 2 within three business days of the employee’s first day of work. As before, your company will still be able to use the paper I-9 form, the online USCIS fillable form, or a compliant electronic I-9 program. [Please see information regarding the new Form I-9 above.] The key difference for companies using the new optional remote I-9 verification process is that you will be able to verify the employee’s documentation remotely, but your company is still required to meet all I-9 and E-Verify obligations.

Can my company use the new optional remote I-9 verification process for some, but not all, employees? 

Yes, the agency has confirmed that employers may, for example, opt to use the alternative process only for its remote employees while continuing to use the standard, in-person I-9 document review for in-office hires. However, employers need to be careful to develop policies that are not discriminatory – for example, an employer may not establish a policy of using the alternative process for all employees but requiring green card holders to present original documents in person as this would constitute impermissible citizenship status discrimination. Therefore, your company should carefully review any segmentation of the workforce in implementing this process to ensure that the practice does not violate anti-discrimination protections.

What are best practices that a company should follow in implementing the new optional remote I-9 verification process?

• Establish a robust protocol to comply with the special requirements of the process, including receipt of documents, video interview, and the document retention requirements.
• Establish a protocol for proper handling of employees’ personal information and documentation.
• Develop a compliant protocol for the organization that includes protections against discrimination.
• Update handbooks and compliance procedures.
• Develop a document retention and purging plan.
• Provide ongoing training for those involved in administering the I-9 process.
• Perform regular documentation and process audits.

New Optional remote I-9 verification process and Sunset Requirements of the Covid I-9 Flexibilities

The agency announced the new optional remote I-9 verification process at a time when many companies are working hard to recertify employee documents that were reviewed remotely under the recently expired Covid I-9 flexibilities. For some employers, the new optional remote I-9 verification process provides an opportunity to complete the recertification process in a more streamlined, efficient manner.

If my company qualifies to use the optional remote I-9 verification process, can we use it to recertify the documentation for employees we hired using the temporary remote Covid I-9 flexibilities option to comply with the August 30, 2023, recertification deadline? 

Yes, your company can use the new optional remote I-9 verification process to recertify documentation that an employee presented during the  Covid I-9 flexibilities period to comply with the August 30, 2023, recertification deadline if the following conditions are met:

• Your company performed the virtual inspection of the employee’s documents under the Covid I-9 flexibilities between March 20, 2020, and July 31, 2023.
• Your company was already enrolled in E-Verify when it performed the virtual inspection of the employee’s documentation under the Covid I-9 flexibilities.
• Your company submitted an E-Verify inquiry for the employee at the time it performed the virtual inspection.

What are my company’s options if we do not want to perform the virtual recertification using the new optional remote I-9 verification process?

Your company can recertify documentation presented during the temporary remote Covid I-9 flexibilities to comply with the August 30, 2023, recertification deadline using one of the following methods:

(1) Your company performs an in-person recertification process where the employee appears in person before a company representative and presents original I-9 documentation, or

(2) your company uses a traditional remote third-party protocol, where the company agrees to allow a notary or other third party to perform an in-person review of original I-9 documentation on the company’s behalf and certify the results for your company’s records.

What steps is my company required to follow if we use the optional remote I-9 verification process to recertify documents collected remotely under the Covid flexibilities?

A qualified employer who uses the optional remote I-9 verification process to recertify documents collected remotely under the Covid flexibilities will be required to follow these steps:

• Request the employee to provide digital copies of the front and back of the employment eligibility and identity documentation of their choice from the I-9 Lists of Acceptable Documents.
• After receiving the documentation from the employee,
  • examine the copies of the front and back of the employment eligibility and identity documentation 
  • determine that the documentation reasonably appears to be genuine
• Schedule and conduct a live video call with the employee to further review the front and back of the employee’s employment eligibility and identity documentation and determine that the documents relate to the employee.
• Annotate Section 2 of the Form I-9 under “Additional Information” with the date the recertification process was completed.
• Retain a clear and legible copy of the front and back of the employment eligibility and identity documents provided by the employee in the I-9 file.

Do we need to recertify the documents of employees who are no longer working for the company?

No. The government has confirmed that employers do not need to recertify documents for employees who no longer work for the company but should make a note on the I-9 regarding the termination date. 

Can an employee present different documents during the recertification process than they provided previously during the verification under the Covid flexibilities?

Yes, the employee can provide any acceptable document or combination of documents from the I-9 Lists of Acceptable Documents during the recertification process. Where an employee provides different documents during recertification, the best practice is for your company to complete a new Section 2 of Form I-9 and attach it to the existing Form I-9. Furthermore, in the additional information section of the form, your company should provide a brief note to explain that the employee presented new documents during the recertification process.

What if my company already followed the same steps that are required by the new optional remote I-9 verification process in our previous remote verification during the Covid flexibility period? Can we just document that our company previously completed those steps to satisfy the recertification requirements?

No. The government has clarified that if a company chooses to use the new optional remote I-9 verification process to perfect the recertification of documents collected remotely under the Covid flexibility period, the company must still follow the required steps for the new optional remote I-9 verification process. In other words, your company will need to request and review the documents from the employee, arrange a video call, and retain the document copies as required, make a notation on the I-9 regarding the recertification, and maintain documentation that the full process was completed for this case.

What if my company is unable to complete the recertification process of the Covid flexibility cases by the August 30, 2023, deadline?

If your company used the temporary remote Covid I-9 flexibilities, you should make every possible effort to complete the document recertification process before the August 30, 2023, deadline. However, recognizing the burden that this short timeframe has placed on employers, ICE stated in press communications that it will not focus its limited enforcement resources to find I-9 violations for employers that fail to complete the document recertification process by August 30, 2023, as long as employers are otherwise in compliance with the law and regulations and have taken timely steps to complete the process. Therefore, while we urge employers to complete the recertification process by August 30, 2023, if at all possible, if your company is unable to complete the process in full by the deadline, we recommend documenting the company’s good-faith efforts and continue to press forward to complete the process as quickly as possible.

For more information about the new policies on the verification of I-9 documentation for remote workers, please watch our webinar titled, "New Virtual I-9 Document Review Option: What Employers Need to Know". 

View this webinar.
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