DHS Modernizes Form I-9 Document Inspection Procedures and Issues a New Form, Easing Process for Certain E-Verify Employers

The Department of Homeland Security (DHS) has announced an alternative procedure for certain employers to physically inspect identity and work authorization documents required for the Form I-9, employment eligibility verification process. This change comes at the urging of many employers who called on the government to modernize its document inspection procedure and provide relief to employers who have relied on virtual inspections that were permissible during the COVID-19 pandemic.

To many employers’ relief, beginning August 1, 2023, an optional, alternative procedure to physical inspections will be available to certain employers enrolled in the E-Verify program. In addition, a new, simplified Form I-9 will be available for use starting the same day. Below we discuss the alternative document inspection procedure, its interplay with the end of the COVID-19 flexibilities, and DHS’s new form.

Alternative, Virtual Document Inspection Procedure

DHS announced authorization for a final rule that outlines an alternative, virtual procedure for inspecting employees’ I-9 identify and work authorization documents. The final rule will be published in the Federal Register on July 25 and will become effective on August 1.

Only certain employers are eligible to use this alternative document inspection process. Specifically, employers must meet the following criteria to take advantage of this modernized procedure:

1. An employer must be enrolled in E-Verify at the worksite that will utilize the virtual process and must remain in good standing with the E-Verify program.
2. Any employer representative who manages and creates E-Verify cases must first complete an E-Verify training that is available as part of E-Verify registration. The course includes fraud awareness and anti-discrimination training.

If an employer is unable to meet these criteria, physical document inspection is still acceptable.

For qualified employers, the alternative procedure provides an optional method to meet the document inspection requirement by completing the following steps within three business days of the employee’s first day of employment:

1. Examine copies of the document(s) (front and back, if the document is two-sided) to ensure that the document(s) reasonably appear to be genuine.
2. Conduct a live video interaction with the employee to ensure the document(s) reasonably appear to be genuine and relate to the employee. The document(s) presented during the video call must be the same as those previously transmitted for step 1 above.
3. Indicate on the Form I-9 that the alternative procedure was used to complete Section 2 or reverification. The new form, as discussed below, will include a check box to make this notation. Otherwise, the employer may write “Alternative Procedure” in the Additional Information field in Section 2, if reverifying an older Form I-9 version.
4. Retain clear, legible copies of the document(s), including both the front and back if the document is two-sided.
5. Be prepared to present the retained copies in the event of a government audit or investigation.

Use of the alternative procedure is entirely optional. Physical inspection of documentation for I-9 verification purposes remains a viable option, even if the employer qualifies for the alternative procedure. If a qualified employer chooses to use the alternative procedure, it must do so consistently for all employees at a given worksite. The final rule, however, allows employers to offer the alternative procedure for remote hires and require physical inspection for in-person and hybrid workers. The decision to utilize both processes must not be made on the basis of a protected characteristic (i.e., citizenship, immigration status, or national origin). In short, employers must implement the document inspection procedure in a nondiscriminatory manner.

Interplay with the End of COVID-19 Flexibilities

Eligible employers may also utilize the new alternative procedure to satisfy their obligations arising from COVID-related virtual inspections.

By way of background, beginning March 20, 2020, certain employers have conducted virtual document inspections due to flexibilities offered by DHS. Those flexibilities will end on July 31, 2023. Employers that took advantage of the flexibilities and conducted virtual inspections previously were required to perform physical inspections for each of those cases by August 30, 2023. However, the new rule permits these employers to use the alternative, virtual procedure to meet their obligations if:

1. The employer performed the COVID-related virtual inspection between March 20, 2020 and July 31, 2023.
2. The employer was enrolled in E-Verify at the time the COVID-related virtual inspection took place.
3. The employer created an E-Verify case for the employee, unless the COVID-related virtual inspection was for a reverification.

Qualified employers that choose to use the alternative, virtual inspection to meet their obligations should follow the required actions outlined above—examining copies of the documents, conducting a live video call, indicating the alternative procedure on the I-9, retaining front and back copies, and preparing to present files in the event of an I-9 audit.

As a reminder, employers should have notated a COVID-related virtual inspection in the Additional Information field of Section 2 by writing: “Remote inspection completed on mm/dd/yyyy.”

When completing either a physical inspection or inspection using the alternative procedure, the employer must update the Additional Information field of Section 2 again by writing either: (1) “COVID-19 documents physically examined on mm/dd/yyyy,” or (2) “Alternative Procedure mm/dd/yyyy.” Both notations should include the name and job title of the reviewer.

New Form I-9

DHS also announced its plan to publish a new Form I-9. The new form will be available for use beginning August 1, 2023. Beginning November 1, 2023, employers must use the new version of the form. Employers are not required to complete the new Form I-9 for current employees who have already properly completed the I-9 process, unless reverification is required after October 31, 2023.

The new version of the form is a single page, containing Sections 1 and 2 only. The preparer/translator attestation that was previously included in Section 1 is now located on a separate page as Supplement A. The prior Section 3, which is used for reverifications and rehires, is also located on a separate page as Supplement B. Employers may use the supplements as needed.

As referenced above, the new version also includes a checkbox for eligible employers to mark when using the alternative, virtual inspection procedure rather than the physical inspection.

The form was also revised to be fillable on tablets and mobile devices and easily downloaded when necessary. This change also discontinues the requirement that all blank fields be marked as “N/A.”

The new form will not be available on US Citizenship & Immigration Services’ website until August 1. However, a sample of the form is available here.

What Employers Should Do Next

Employers should take steps as soon as possible to set their companies up for success in light of these significant changes. E-Verify enrollment, for example, can take weeks to complete the process, and employers will be unable to use the relaxed alternative procedure before enrolling and completing the required trainings. We outline below the specific actions that employers can take now to prepare for the August 1 transition.

1. Confirm whether or not the company is enrolled in E-Verify and the date on which enrollment became effective. E-Verify provides a search function on its website.
2. Ensure company representatives who access and create E-Verify cases complete the required training.
3. Determine application of alternative procedure to ensure consistent, nondiscriminatory application of document inspection protocols. For example, will the company use the alternative procedure for remote hires only, or for all new hires?
4. Create an updated written policy and provide training on the alternative, virtual procedure and new form to onboarding personnel who will facilitate the I-9 and E-Verify process.
5. If the company utilized a virtual inspection procedure during the COVID-19 flexibility period (i.e., March 20, 2020 through July 31, 2023), analyze if the company can leverage the alternative procedure for satisfying the physical inspection obligation.
6. Confirm with I-9 and E-Verify vendors when the new Form I-9 will be incorporated into the company’s system for use, which must be no later than October 31, 2023.
7. Prepare a memo to the company’s master I-9 file summarizing the document inspection practices performed by the company during the COVID-19 flexibility period, as well as the steps taken to update those I-9s consistent with the government’s new rule.

If you have any questions about the new inspection procedures or ensuring your I-9 program is fully compliant, please contact your Quarles attorney or:

• Tim D’Arduini (202) 780-2641 / timothy.darduini@quarles.com
• Emily Shircel (414) 277-5217 / emily.shircel@quarles.com
• Nick Lowrey (202) 372-9526 / nicholas.lowrey@quarles.com