WHAT’S HAPPENING
DHS has posted a final rule regarding I-9 remote document inspection that will take effect on August 1, 2023. This new rule creates a permanent remote I-9 document inspection process that can be used for all employees hired on or after August 1, 2023 so long as the employer completing the I-9 inspection is enrolled and in good standing in the E-Verify system.
HOW THIS IMPACTS COVID-19 REMOTE INSPECTIONS
The new rule also creates an option for qualifying employers to use the alternative review process in lieu of undertaking a physical review of documents, to meet the August 30, 2023 deadline for I-9s completed with remote or virtual document inspection during the COVID-19 pandemic. While all employers are still required to come into compliance with the physical document inspection of remotely inspected documents by August 30th, the rule allows qualifying employers to use these new alternative remote inspection procedures (discussed in more detail below) to satisfy that requirement.
To be eligible to use the new, alternative remote inspection procedures for this purpose an employer must:
Have been enrolled in E-Verify at the time the I-9 remote inspection took place under COVID-19 flexibilities;
Have created an E-Verify case for the employee at the time of inspection (other than reverifications); and
Have performed the remote inspection between March 20, 2020 and July 31, 2023.
After August 1st, employers who are enrolled and in good standing with E-Verify can use these new remote verification processes, however, the new remote rule applies only to employees working at sites covered by an employer's E-Verify enrollment, so for any locations where E-Verify is not used, employers are not able to take advantage of the remote inspection process.
THE NEW REMOTE INSPECTION PROCEDURE
As with typical I-9 compliance, employers must complete the document inspection (whether physical or remote) within 3 business days of the employee’s first day of work for pay. Employers wishing to use remote document inspection during this time must ensure that they comply with the following procedures:
The employee must transmit, digitally or by mail, a copy (front and back, if applicable) of the I-9 document(s) they wish to present.
The employer must thoroughly examine the copy of each document to ensure they are genuine and related to the employee presenting them.
The employer must conduct a live, video meeting with the employee where the employee presents the document(s) that were transmitted to the employer in copy and where the employer further ensures they reasonably appear genuine and related to the employee.
The new Form I-9 (available August 1, 2023) will contain a box that an employer must check to indicate that they used the alternative remote verification procedures to complete Section 2 of the Form. While the new Form version will be mandatory on October 31, 2023, for employers who use the old version of the form prior to then, they should note “alternative procedure” in the Additional Information field in Section 2.
The employer must retain clear, legible copies (front and back, if applicable) of the documents presented and inspected, which must be made available in the event of an I-9 audit.
It is important to note that if qualifying employers used remote inspection procedures during COVID-19, but did not follow the above protocols, they will need to do a new remote inspection complying with these before August 30, 2023.
IMPORTANT COMPLIANCE NOTES
Employers who are eligible to utilize the new alternative remote document inspections procedures should keep the following compliance notes in mind:
Consistent, Nondiscriminatory Implementation - if an qualifying employer opts to use the remote procedure, it must do so consistently for all employees at the worksite. The rule provides employers with flexibility to distinguish between inspection methods based on whether an employee is fully remote, hybrid, or onsite (e.g., use remote inspection for only fully remote employees and physical inspection for hybrid and onsite employees). However, if the employer chooses to use different methods for different types of employees they must ensure they can document that the method used was not for a discriminatory purpose or that employees were treated different for I-9 inspection purposes based on their citizenship, immigration status, or national origin
Inspection before August 1, 2023 - Note that this new alternative process is only available to qualifying employers for I-9 inspections occurring on or after August 1, 2023. Until then, qualifying employers cannot use this process unless they are doing so to satisfy the special physical examination requirement of the temporary COVID-10 flexibilities.
Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about how the new rule applies to your specific circumstances, please contact your team at D&S.