As part of a final rule published on July 25, 2023, and in connection with its newly published Form I-9 (which employees may use after August 1), certain employers will be able to permanently verify an employee’s employment eligibility remotely. This final rule continues the pandemic-related flexibility offered to employers to meet their Form I-9 verification requirements.
Employers are required to obtain a completed Form I-9 and inspect employment verification documents from all newly hired employees within three days of their start of employment. Employees can present a passport or permanent resident card (a/k/a “green card”), or a combination of other documents (e.g., a driver’s license or social security card) to verify their eligibility to work in the United States.
Before Covid-19, this verification required employers to physically inspect the acceptable documents and determine whether they appeared to be authentic. Unsurprisingly, meeting the physical inspection requirement proved difficult as the world turned toward remote work at the start of the Covid-19 pandemic. As a result, the Department of Homeland Security (“DHS”) began allowing employers, temporarily, to inspect the documents remotely with certain parameters.
Moving forward, the July 25 final rule issued by DHS allows E-Verify participants in good standing to continue using the alternative (remote) inspection process. The final rule goes into effect August 1, 2023, and applies to all employees hired after the effective date (meaning the ability to remotely inspect verification documents does not apply retroactively).
In addition to enrolling in E-Verify, employers utilizing the remote inspection process must also (1) retain clear and legible copies of all presented documents; (2) undergo training through E-Verify; (3) conduct a live video interaction after the new employee transmits a copy of the document(s) to the employer; and (4) indicate on the Form I-9 that the alternative procedure was used to examine the documentation. For the new Form I-9, effective August 1, employers must check the box in the “Additional Information” field to meet this fourth requirement.
Importantly, if an eligible employer chooses to use the remote inspection process for one employee, it must generally do so for all similarly-situated employees. One exception applies where an employer uses the alternative remote inspection process for remote workers while still physically inspecting documentation of employees who work in person.
Ballard Spahr regularly works with its clients to review compliance with I-9, E-Verify, and other employee onboarding matters, and has previously posted about this issue. We also assist clients with internal I-9 audits to insulate employers from penalties associated with past issues or gaps in record keeping.