New I-9 Employment Regulations Take Effect; Remote Verification Now Permanent for E-Verify Users

In a move sure to be welcomed by employers, the government published new regulations Aug. 1 regarding the I-9 Employment Eligibility Verification form, making remote examination of supporting documents a permanent option for qualified E-Verify users. The new I-9 form can be accessed here and may be used immediately.

For those qualified employers, U.S. Citizenship and Immigration Services (USCIS) also said an in-person physical inspection by Aug. 30, 2023, of all documents employers had verified remotely during the pandemic flexibility period would not be required. However, employers who are not registered E-Verify users must physically inspect all documents they had viewed remotely from March 2020 through July 31, 2023, and must go back to verifying supporting documents in person effective Aug. 1, 2023.
 
Background

The government requires that employers verify their newly hired employees' identities and ensure they are authorized to work in the U.S. Employees historically needed to physically produce certain documents, or a combination of documents, to provide that proof.

In March 2020, when pandemic restrictions began keeping many employees away from the office, the U.S. Department of Homeland Security's Immigration and Customs Enforcement (ICE) announced COVID-19 "Form I–9 flexibilities," which suspended the requirement that employment eligibility documents be inspected in person for employers with remote employees.

The new I-9 regulations require that, within three business days after the first day of employment, employers must revert to physically examining the documentation presented by new employees from the Lists of Acceptable Documents—unless the employers are registered E-Verify users.

How to Comply

For all employers:

• Begin using the new Form I-9 ("Edition 08/01/23") now, or switch to the new form by no later than Nov. 1, 2023. The version date can be found at the lower left corner of the form.
• Use of a third-party vendor to act as your authorized representative for document verification is still permitted.

If you are a registered E-Verify employer:

• You may continue to verify employee documents remotely, or you may verify the documents in person.
• If choosing the remote option, you must use a live video interaction to inspect the new employees' documents.
• Examine both the front and back of the document(s).
• You must retain a clear and legible copy of all documents presented by the employees.
• Check the box in the "Additional Information" field on the new I-9 form to indicate when you have remotely examined employment verification documents.
• Ensure that you do not unlawfully discriminate against certain employees by deciding who is or is not eligible for the remote verification process based on their citizenship, immigration status, or national origin.

If you are not a registered E-Verify employer:

• You must go back to verifying employee documents in person.
• By Aug. 30, 2023, you must also physically inspect all documents you viewed remotely from March 2020 through July 31, 2023.

We Can Help

If you have questions about the new Form I-9 and how the regulations impact your company, or about related issues, Maslon's Labor & Employment attorneys can assist.