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How employers can adopt new Form I-9 remote review procedures

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Daniel Brown is a Partner in Fragomen, Del Ray, Bernsen & Loewy, LLP’s Washington, D.C. office, and is part of the firm’s government strategies and compliance group. His experience includes counseling corporate clients on business immigration, compliance and enforcement matters, with a focus on I-9 and E-Verify issues.

The government’s announcement that it would not extend its COVID-19 I-9 document review policy beyond July 31 and that employers would need to complete the physical review of documents by Aug. 30 for all employees whose I-9 forms were completed using virtual or remote review has left some employers flat-footed.

Some employers have been scrambling to revise their I-9 procedures to incorporate physical document review for newly hired employees going forward. Others, who used the policy more expansively than the government intended, have also been struggling with how to ensure that documents get physically reviewed and I-9 forms get updated for all those employees hired since the COVID-19 I-9 flexibility policy was first announced in March 2020.

However, there is good news for employers enrolled in the DHS E-Verify program. The government issued a final rule, effective Aug. 1, that authorized E-Verify employers to review documents remotely going forward for employees hired on or after that date, as well as a new version of the I-9 form. DHS will also allow employers to use the new alternative document review procedures to meet the Aug. 30 deadline if the employer was enrolled in and using E-Verify when the I-9 was originally completed.

New alternative document review procedures for E-Verify employers

The new alternative document review option can be used only for employees hired on or after Aug. 1. Employers not enrolled in E-Verify will still be required to physically inspect employee documents under the normal I-9 rules.

The alternative remote inspection is available only at locations where the employer is using E-Verify. According to ICE, if an employer chooses to use the new remote procedure at a particular location it should do so consistently for all employees at that site. If an employee is unable or unwilling to submit documents using the alternative remote procedure, the employer must permit the employee to submit documents for physical examination. 

E-Verify employers choosing to take advantage of the alternative document review procedures must take the following steps when completing I-9 forms for new hires:

  • The employee must transmit to the employer a copy (both front and back) of the I-9 document(s) they wish to present to demonstrate their identity and employment eligibility.
  • The employer must examine a copy of each I-9 document presented by the employee to ensure that the document(s) appear genuine and related to the employee.
  • The employer must conduct a live video interaction with the employee to ensure that the documents presented reasonably appear to be genuine and related to the employee. The employee must present the document(s) that were transmitted in copy to the employer.
  • On the new edition of I-9 form, the employer will be required to check a box indicating that the alternative procedure was used to examine documentation to complete Section 2 of the form or Section 3 for reverification. Through Oct. 31, if the employer uses the current version of the form, the employer must notate “alternative procedure” in the Additional Information field in Section 2.
  • The employer must retain a clear and legible copies of the documents presented by the employee (even if it normally does not retain copies of I-9 documents).

All employers are still going to have to comply with the Aug. 30 deadline to physically inspect employee documents for all I-9s completed using remote or virtual document review during the COVID-19 emergency.

The good news for employers enrolled in E-Verify during that time period is that they will be allowed to use the new optional remote procedure to satisfy the physical document inspection requirement. 

To be eligible to use the remote procedure to meet the Aug. 30 deadline, the employer must have been enrolled in E-Verify at the time the I-9 was initially completed using remote or virtual document review and have created a case in E-Verify for the employee during the period while the ICE COVID-19 document review flexibility policy was in effect, March 20, 2020, to July 31, 2023. 

E-Verify employers using the new remote document review process to meet the Aug. 30 deadline should write in the other information field in section 2 of the I-9, “Alternative Procedure” and write in the date the live video interaction to review the employee’s documents was conducted.

If an employer was not enrolled in E-Verify during that period, it cannot use the new remote document review policy to complete the physical document inspection requirement.

New remote document review pilot program for smaller employers

There is potentially good news for some smaller employers who are not enrolled in E-Verify as well.  On Aug. 3, ICE issued a notice in the Federal Register seeking comment on a proposed pilot program for smaller employers who are not enrolled in E-Verify to potentially utilize remote document review for I-9 completion. Comments on the pilot program are due by Oct. 2.

It is not clear yet what the precise rules of this remote review pilot program will be. It does not appear that this particular pilot program will be as useful as the remote procedure that is available to E-Verify employers. The essential elements from the ICE notice are:

  • The pilot program may be limited to employers with 500 or fewer employees who are not currently enrolled in E-Verify.
  • Employers wishing to take advantage of the pilot program will need to complete and submit a formal application to participate.
  • Employers may be prohibited from using this pilot program remote document review procedure for employees who work onsite or in the office, or who work in a hybrid capacity. Employers may also be required to complete a subsequent physical inspection of the employee’s I-9 documents.
  • ICE may also require employers participating in the pilot program to take additional measures such as completing fraudulent document detection and anti-discrimination training.

Impact of the new remote document inspection program on I-9 compliance programs

Enrollment in the E-Verify program will be much more attractive to employers, particularly those with significant numbers of employees working remotely since the new remote inspection option will only be available to E-Verify employers.

The new remote document review option is superior to the flexibility policy ICE established during the COVID-19 emergency. Although employers will need to notate on the I-9 that the alternative review procedure was utilized, they will not need to track those I-9 forms and ensure that a physical document review is completed at a later date. 

Employers wishing to take advantage of the new policy will need to ensure that they incorporate several steps into their I-9 procedures. These include the following:

  1. Employers will need procedures that enable employees to transmit legible copies of their identity and employment eligibility documents and to ensure copies are retained with the I-9 form. Under the normal I-9 rules, employers have the option to choose whether or not to retain copies of employee documents. E-Verify employers must retain copies of U.S. passports or passport cards, green cards, or employment authorization cards when provided by an employee. Any employer taking advantage of the new remote document review option will be required to retain copies of all employee documents with the I-9 form.
  2. Employers will need to check the box on the new form version to be released on Aug. 1 indicating the alternative remote document review procedure was utilized. Employers can still use the current form version through Oct. 31. If the current form version is used employers will need to note on the form that the alternative procedure was utilized.
  3. Employers will need to incorporate the required live video interaction into the I-9 completion process. Unlike the COVID-19 document review policy employers cannot simply review copies of a newly hired employee’s documents but will also have to review them in a live interaction with the employee. 

Because the normal I-9 rules require physical document review, and the COVID-19 flexibility policy only delayed but did not eliminate that requirement, many employers have been focused on implementing I-9 procedures that relied on third parties, known as authorized representatives, to conduct the document review on the employer’s behalf. That will likely no longer be as necessary, at least for E-Verify employers, as the alternative procedure is a true remote document review option that will not require any physical proximity with the newly hired employee when their documents are inspected.

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