On August 1, 2023, U.S. Citizenship and Immigration Services (USCIS) will introduce a revised version of Form I-9 Employment Eligibility Verification. One of the enhancements to the form includes a checkbox that allows employers enrolled in E-Verify to signify that they conducted a remote examination of identity and employment authorization documents using an alternative procedure authorized by the Department of Homeland Security (DHS), as detailed below.

The introduction of the revised Form I-9 follows the DHS's final rule announced on July 21, 2023, which acknowledges the conclusion of temporary COVID-19 flexibilities as of July 31, 2023. Before the Form I-9 flexibilities were implemented during the COVID-19 emergency, employers were required (without exception) to physically examine a new hire's documentation within three business days after the first day of employment. The COVID-19 Form I-9 flexibilities provided a temporary exception to this physical examination requirement in order to account for the realities of remote and work from home arrangements dictated by the pandemic. The new DHS ruling allows employers to have a permanent option for remotely verifying employment eligibility documents beginning August 1, 2023. 

Remote Examination Eligibility and Requirements

In addition to the tradition physical examination of examining an employee's Form I-9 documents, DHS will now recognize a permanent allowance for certain employers to remotely examine Form I-9 documentation. To be eligible for remote examination, the employer must satisfy the following criteria: (1) employers must be enrolled in the federal electronic E-Verify system; (2) employers must examine and retain copies of all documents; (3) employers must conduct a live video interaction with the employee to ensure the documents appear to be accurate and genuine; (4) and employers must create an E-Verify case if the employee is a new hire.

With the conclusion of the COVID-19 flexibilities, employers now have a deadline of August 30, 2023, to conduct a physical document examination of any employee whose work authorization and identity documentation was examined remotely based on the COVID-19 flexibilities. However, the final rule permits employers who were already using E-Verify and created cases for employees between March 20, 2020 through July 31, 2023 while using the COVID-19 flexibilities for Form I-9 completion, can opt to utilize the new alternative procedure. This alternative process will fulfill the requirement for physical document examination by the August 30, 2023 deadline. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must still complete an in-person physical examination by the same date, August 30, 2023.

Koley Jessen will continue to monitor developments related to the revised version of I-9 verification. We will provide updates as they become available. If you have any questions regarding these new requirements or need assistance with any of your policies, please contact a member of Koley Jessen's Employment Group.

_{This content is made available for educational purposes only and to give you general information and a general understanding of the law, not to provide specific legal advice. By using this content, you understand there is no attorney-client relationship between you and the publisher. The content should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.}