Feds Post Remote Verification Final Rule, Schedule New Form I-9

U.S. Citizenship and Immigration Services announced a final rule July 21 establishing an optional remote employment verification process for eligible employers.

The agency will also release a new Form I-9 Aug. 1, 2023, although employers may use the current form until Oct. 31, 2023.

 The final rule providing certain employers with a remote means of examining I-9 documentation and completing Form I-9 also takes effect Aug. 1.

USCIS outlined a number of requirements for employers to qualify to use the alternative procedure:

• Employers must be enrolled in E-Verify, and remain in good standing and compliance with all requirements of the E-Verify program.
• Employers must complete E-Verify training as part of the enrollment process.
• Employers must use the alternative procedure consistently for all employees at a given worksite or use it only for remote employees, so long as the employers do not “adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin.”

Alternative Process

The alternative procedure will require a qualified employer to do all of the following within three business days of an employee’s start date:

• Examine all Form I-9 documents (including the front and back of any double-sided documents) to ensure that the documentation “reasonably appears to be genuine.”
• Conduct a live video interaction with the employee to verify that the documentation “reasonably appears to be genuine and related to the individual.”
• Check a box on the new version of Form I-9 indicating that an alternative procedure was used to examine I-9 documentation (or, if using the current Form I-9 during the Aug. 1–Oct. 31, 2023 grace period, write “alternative procedure” in the Additional Information field in Section 2).
• Retain a “clear and legible” copy of documentation (including the front and back of any double-sided documents).

Employers also must offer clear and legible copies of I-9 documentation to federal officials in the event of an audit or investigation.

Examination Requirements

Qualified employers that previously used remote COVID-19 document examination flexibilities may use the alternative procedure to satisfy current physical examination requirements by the Aug. 30, 2023, deadline without creating a new E-Verify, provided that:

• The employer was enrolled in E-Verify when they previously conducted a remote examination of the employee’s Form I-9 documentation;
• The employer created an E-Verify case for that employee (except for reverification); and
• The employer performed the remote inspection between March 20, 2020, and July 31, 2023.

Employers also must indicate use of the alternative procedure by adding “alternative procedure,” as well as the date of the live video interaction with the employee (as required in the alternative inspection process), to the “Additional Information” field in Section 2 of Form I-9 or in Section 3.

USCIS officials said the new Form I-9 is designed to be more user-friendly, with the ability to complete the form on a tablet or mobile device.

The length of the form has been reduced to a single-sided sheet, and the number of pages of instructions has been changed from 15 to eight pages.

USCIS has also revised the lists of acceptable documents page with certain receipt notices, and included guidance on when certain employment authorization document may be automatically extended.