25 Jul 2023

United States

DHS Issues Final Rule Allowing Remote I-9 Verification for E-Verify Participants; New I-9 Form Available Beginning August 1, 2023

The Department of Homeland Security (DHS) published a final rule today that will give qualified employers who participate in E-Verify and are in good standing the option to complete remote I-9 verification of employees’ identity and employment eligibility documents as an alternative to examining these documents in person starting on August 1, 2023.  Separately, United States Citizenship and Immigration Services (USCIS) has announced that it will release a new version of Form I-9 on August 1, 2023.

Form I-9 is the form that must be used by all employers in the United States to verify the identity and employment eligibility of all new employees.  The new form, with an edition date of 08/01/23, must be used by all employers starting on November 1, 2023.  The current version of Form I-9, with an edition date of 10/21/19, can continue to be used until October 31, 2023.

The DHS regulation will confirm and make permanent USCIS’ practice of allowing certain employers to inspect the identity and employment authorization documents of employees through a remote process that does not involve a face-to-face personal interaction between the employees and the employer’s representative.  This remote process was previously authorized temporarily by the DHS during the temporary COVID-19 I-9 flexibilities period.  The regulation will allow employers enrolled in the E-Verify program to examine identity and employment authorization documents remotely under an alternative procedure authorized by DHS.  Employers seeking to use this alternative procedure must, in addition to being enrolled in E-Verify, examine and retain copies of all documents, conduct a live video interaction with the employee, and create an E-Verify case for all new hires.  Employers who do not participate in E-Verify or are no longer in good standing may not use the new process.

The alternative remote I-9 process will require the employee, within three days of the first day of employment, to transmit copies of their identity and employment eligibility documents to the employer, or an authorized representative acting on the employer’s behalf such as a third-party vendor, by e-mail or a similar process.  The employer will then examine the documents to ensure they appear genuine.  The employee and the employer will then conduct a “live video interaction” during which the employee will present the transmitted documents.  The employer can then complete Form I-9.  The new I-9 form will include a checkbox that should be marked by employers enrolled in E-Verify to indicate they remotely examined identity and employment authorization documents under an acceptable alternative procedure. Qualified employers who choose to use the alternative remote I-9 process must retain a clear and legible copy of all documents presented by new hires. In addition, E-Verify employers and any users who manage and create E-Verify cases must complete an E-Verify tutorial that includes fraud awareness and anti-discrimination training. Tutorials are free and accessible as part of the E-Verify enrollment process.

Use of the alternative or remote process is not mandatory, and qualified employers may choose to either implement the new process for all employees at a worksite, continue using the traditional in-person inspection process if preferred, or limit the alternative remote I-9 process to employees who work fully offsite, while still requiring physical I-9 inspections for employees who work onsite or in a hybrid capacity.  If the employer offers the alternative procedure to some employees at a hiring site, it must also offer this to all employees at that site. If an employee is unable or unwilling to complete the alternative process, he or she must be allowed to complete the traditional process. Employers should exercise caution in avoiding practices that may be viewed as discriminatory or treat employees differently on the basis of citizenship, immigration status, or national origin or otherwise deemed discriminatory.

Employers enrolled in E-Verify who created an E-Verify case for an employee whose documents were examined remotely during the COVID-19 flexibilities period of March 20, 2020, to July 31, 2023, may use the new alternative remote procedure starting on August 1, 2023, to comply with the physical document examination requirement by August 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities period must complete an in-person physical examination of the relevant documents by August 30, 2023.

The new I-9 form will also contain a number of formal revisions, including placing Section 1 (Employee Information and Attestation) and Section 2 (Employer or Authorized Representative Review and Verification) on a single page, moving the Preparer and/or Translator Certification subsection of Section 1 to a separate and standalone supplement, and moving Section 3 (Reverification and Rehires) to a separate and standalone supplement.  The new form will be fillable electronically on mobile devices and tablets.  The new form will also revise the Lists of Acceptable Documents page to include certain acceptable receipts as well as provide guidance and links to information on automatic extensions of employment authorization documentation.

© 2022 Tafapolsky & Smith LLP. All rights reserved.
The content above is provided for informational purposes only. It should not be construed as legal advice on any subject matter. Use of this information does not create an attorney-client relationship. 

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Robin Paulino


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