Permanent Remote Review
On July 25, 2023, the Department of Homeland Security (“DHS”) published a final rule that will provide eligible employers filling out the Employment Eligibility Verification Form I-9 an optional alternative to the in-person physical document examination method that employers have followed as part of the Form I-9 process. The alternative procedure is available only to qualified employers, meaning those employers who are enrolled, and participate in good standing, in E-Verify.
A qualified employer does not need to use the alternative procedure, but if a qualified employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site, without discrimination. A qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic.
In addition to the requirement that employers use E-Verify, the optional alternative verification process requires the following to occur within three business days of the first day of employment:
- The employee must transmit a front and back (if the document is two-sided) copy of the identity and employment authorization documentation to the employer;
- The employer must examine the copies of the Form I-9 documentation or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
- The employer then must conduct a live video interaction with the individual who must present the same documentation to ensure that the documentation reasonably appears to be genuine and related to the individual;
- The employer will then indicate on the Form I-9, by completing the corresponding box (that will be on the updated Form I-9), that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable; and
- The employer must retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back, if the documentation is two-sided).
New Form I-9
Further, the DHS’s Citizenship and Immigration Services has announced a new version of the Form I-9, Employment Eligibility Form that introduces changes that will be consistent with DHS final rule.
The new version of Form I-9 [with a version date of “(Rev. 08/01/23)”] will be available for use on August 1, 2023 on the USCIS website.
Employers may use the current version of Form I-9 (Rev. 10/21/19) through October 31, 2023. Beginning November 1, 2023, employers who fail to use the updated Form I-9 (Rev. 08/01/23) may be subject to all applicable penalties.
Changes to the new Form I-9 and form instructions include the following:
- Section 1 of the form continues to collect identifying information about the new hire and requires the employee to attest whether they are a U.S. citizen, noncitizen national, lawful permanent resident, or noncitizen authorized to work in the United States.
- Section 2 of the form continues to collect identifying information about the employer and information regarding the employee’s identity and employment authorization.
- Supplement A, Preparer and/or Translator Certification for Section 1 (formerly at the bottom of Section 1), is completed when employees have preparers and/or translators assist them in completing Section 1 of Form I-9.
- Supplement B, Reverification and Rehire (formerly Section 3), is primarily used to verify the continued employment authorization of the employee and for other changes.
- Reduces Sections 1 and 2 to a single-sided sheet.
- Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement (Supplement A).
- Moves the Section 3 Reverification and Rehire area to a separate, standalone supplement (Supplement B) for use in a rehire or reverification situation.
- Removes use of “alien authorized to work” in Section 1 and replaced it with “noncitizen authorized to work.” USCIS has also clarified the difference between “noncitizen national” and “noncitizen authorized to work.”
- Ensures the form can be filled out on tablets and mobile devices and be downloaded easily.
- Updates the notice at the top of the Form I-9 that explains how to avoid discrimination in the Form I-9 process.
- Revises the Lists of Acceptable Documents page to include some acceptable receipts, as well as guidance and links to information on automatic extensions of employment authorization documentation.
- Adds a box that eligible employers must check if the employee’s Form I-9 documentation was examined under a DHS-authorized alternative procedure rather than by physical examination.
Should you have any questions regarding the new requirements and form, please contact Ali Law Group.