Many Employers Will Need to Physically Inspect Documents Supporting Form I-9

By Dean Harris posted 08-17-2023 10:31 AM

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The new Department of Homeland Security rule allowing for virtual inspection of documents used to support Form I-9 took effect on August 1, 2023. Unfortunately, it may not be the panacea some employers, particularly those with remote employees, hoped it would be.

The new rule allows only employers in good standing with E-Verify to electronically review documents used to support Form I-9. All other employers must physically inspect documents used to support an employee’s I-9, including those of remote employees.

An E-Verify employer who conducts remote document inspection must follow the following “alternative procedure.”

Examine copies (front and back, if the document is two-sided) of Form I–9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine.
Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must first transmit a copy of the document(s) to the employer (per step one above) and then present the same document(s) during the live video interaction.
Indicate on Form I–9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable.

Retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back if the documentation is two-sided).
And, in the event of a Form I–9 audit or investigation by a relevant federal government official, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.

Employers still have only until August 30, 2023, to physically inspect any documents they inspected remotely during the COVID-19 pandemic flexibility measures. But some E-Verify employers do not need to physically inspect documents that were examined remotely under the flexibility measures. An E-Verify employer may be relieved of the requirement to physically reinspect documents if the employer 1) was enrolled in E-Verify in good standing at the time they performed a remote examination of an employee's Form I–9 documentation for Section 2 or reverification; 2) used E-Verify to create a case for that employee (except for reverification) at the time; and 3) followed steps 1 and 2 at the time the form was completed between March 20, 2020, and July 31, 2023.

But there is a catch. The new final rule published in the Federal Register requires all E-Verify employers using the alternative procedure to follow the steps listed above. Thus, for example, an E-Verify employer who now wishes to avoid physically reinspecting documents remotely inspected between March 20, 2020, and July 31, 2023, must still do a video interaction and copy any documents used to support Form I-9 if the employer did not do so at the time the remote inspection was done. Except for remote employees in remote locations, this may be no easier for the employer than physically inspecting documents before the August 30, 2023, deadline.

Outside of these two areas of relief for E-Verify employers, all employers that did not physically inspect I-9 supporting documents when the COVID-19 flexibility measures were in effect must physically reinspect the documents originally submitted electronically when the I-9 was completed. And moving forward, unless an employer registers for and uses E-Verify, employers must physically inspect all documents used to support Form I-9. If you have any questions about the I-9 inspection process, please email Employers Council.