New Rules for Remote Inspection of I-9 Documents

On July 25, 2023, the Department of Homeland Security (DHS) authorized an alternative process for inspecting I-9 documents. Instead of an in-person physical document examination, qualified employers can conduct remote inspections. This process is optional and available effective August 1, 2023. However, employers that wish to take advantage of the alternative must comply with strict requirements. The key points of the new rule are as follows:

Who can take advantage of the alternative procedure?

Only E-Verify participants in good standing can use the alternative procedure for remote inspection and avoid the requirement of physical examination of I-9 documents.

What is the process for remote inspection of I-9 documents?

Employers must take the following steps to comply with the new rule:

• Within three business days of an employee’s first day of employment, examine an electronic copy of each I-9 document transmitted by the employee to ensure the documents reasonably appear on their face to be genuine.
• Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee will present the I-9 document(s) transmitted electronically during the live video.
• After the video communication, complete the Form I-9 indicating that the required I-9 examination was conducted using the alternative procedure.
• After completing the I-9, retain clear and legible copies of the I-9 documents and have them accessible in case of an audit.

Why is DHS allowing remote inspection?

DHS COVID-19 flexibilities permitted remote inspection of I-9 documents. While these flexibilities ended July 31, 2023, DHS feels that the stringent requirements of the alternative procedure provides sufficient protection against fraud or error, and, thus, are allowing remote inspection for those who qualify.

Are employers required to use the alternative procedure?

Employers are not required to use the alternative procedure. If they opt to use it, they can choose to use it for all workers or only for remote workers and use physical inspection for those working on-site. However, if an employer chooses to offer the alternative procedure to some employees at an E-Verify worksite, that employer must offer it to all employees at that site.

Possible expansion of the alternative process to non-E-Verify employers

On August 3, 2023, DHS requested comments to a proposed Non-E-Verify Remote Document Examination Pilot program. This program will expand the alternative process to non-E-Verify employers.

If you have questions about whether you qualify for the alternative procedure or how to comply with the requirements, contact us for a consultation.