Starting August 1^st, employers who participate in E-Verify may use a new remote verification procedure to examine employee documents to complete or reverify the Form I-9. During the COVID-19 public health emergency, the Department of Homeland Security (DHS) announced Form I-9 flexibilities, including deferring the physical examination of employee documents for employers and workplaces that were operating remotely. The new remote verification procedure seeks to balance the need to identify fraudulent employee documents with flexibility for employers and employees to remotely verify employee documents. Below are some key features of the new remote verification procedure:

Who: The new remote verification procedure is only available to qualified employers. Qualified employers are employers who are E-Verify participants in good standing. E-Verify is a web-based system through which employers electronically confirm the employment eligibility of employees. E-Verify is a voluntary program; however, the following employers are required to participate:

• Employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify;
• Employers in states that have legislation mandating the use of E-Verify, such as a condition of business licensing; and
• Employers subject to a legal ruling that requires participation in E-Verify.

Qualified employers are not required to participate in the new remote verification procedure; however, if they offer the remote verification procedure to new employees at a site, it must apply to all employees at that site. Qualified employers may offer the new remote verification procedure only to remote hires, as long as the practice is non-discriminatory.

What: Qualified employers who choose to use the new remote verification procedure must take the following steps within three business days of an employee’s first day of employment:

1. Examine copies of Form I-9 documents or an acceptable receipt related to the Form I-9 documents: The employee must transmit copies of the documents to the qualified employer and the qualified employer must ensure that the Form I-9 documents reasonably appear to be genuine;
2. Conduct a live video interaction with the employee: During the live video interaction, the employee must present the same Form I-9 documents and the qualified employer must ensure the documentation appears to be genuine and related to the employee;
3. Indicate on the Form I-9 that an alternative procedure was used to examine the Form I-9 documents;
4. Create a case in E-Verify for all newly hired employees; and
5. Retain a clear and legible copy of the Form I-9 documents.

When: Qualified employers may begin using the new remote verification procedure starting on August 1, 2023. While the new remote verification procedure does not have an expiration date, it may be amended or cancelled by DHS.

In addition to the new remote verification procedure, a new version of the Form I-9 will be released on August 1^st. Employers may immediately begin using the 2023 edition or they may continue to use the 2019 version through October 31st. Starting November 1^st, only the 2023 edition of the Form I-9 may be used.

If you have any questions regarding the Form I-9 Updates, please contact Dianne Pledgie at dpledgie@feldesman.com or 202.466.8960.

For more information on the new remote verification process, join FTLF’s upcoming webinar, “Industry Update: Form I-9: New Procedure, New Form, New Compliance Risks” on August 24 at 3 p.m. ET.