New DHS I-9 Regulation Provides Needed Flexibility To Certain Qualified Employers

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Mintz

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Mintz is a general practice, full-service Am Law 100 law firm with more than 600 attorneys. We are headquartered in Boston and have additional US offices in Los Angeles, Miami, New York City, San Diego, San Francisco, and Washington, DC, as well as an office in Toronto, Canada.
On July 25, 2023, the Department of Homeland Security (DHS) published a Final Rule regarding Form I-9 completion; DHS also announced that a new I-9 form will be published on August 1, 2023.
United States Immigration
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On July 25, 2023, the Department of Homeland Security (DHS) published a Final Rule regarding Form I-9 completion; DHS also announced that a new I-9 form will be published on August 1, 2023. The Final Rule provides flexibility in allowing remote document review and verification for certain qualified employers that are enrolled in, and in good standing with, the DHS E-Verify system.

This rule is welcome news for many employers, as it reflects the realities of modern hiring practices in that employees are often hired in remote locations. Many employers will no longer be required to perform in-person inspections of I-9 documents for new hires.

Background:

Existing I-9 regulations require that an employer representative meet with each new hire to complete Form I-9 and inspect the new hire's identity and work authorization documentation to validate its authenticity. On March 19, 2020, DHS announced a flexibility policy as a result of the COVID-19 pandemic to temporarily allow remote inspection of I-9 documents for employers whose workforce was working remotely. This flexibility policy was extended repeatedly through July 2023.

On May 4, 2023, U.S. Immigration and Customs Enforcement (ICE) confirmed that the I-9 flexibility policy would end effective July 31, 2023; and that by August 30, 2023, employers that used the flexibility policy for previous hires must perform an in-person inspection of those employees' I-9 documents to verify authenticity. Our recent alert addressed these requirements.

Highlights of the DHS Regulation:

  • The effective date is August 1, 2023.
  • Only employers who are enrolled and in good standing with the DHS E-Verify system may use the new I-9 flexibility policy. The Final Rule refers to these employers as "qualified employers."
  • Qualified employers can perform remote Form I-9 completion and document inspection for new hires and for reverification of Forms I-9 for existing employees. The Final Rule refers to this process as the "alternative procedure."
  • A new version of Form I-9 will be published on August 1, 2023. The current edition of Form I-9 (10/21/2019 edition date) may still be used through October 31, 2023.
  • The Final Rule addresses previous I-9 requirements as announced by DHS on May 4, 2023, as detailed in our prior alert.

Details of Optional Alternative to Physical Document Examination:

As mentioned above, qualified employers may perform remote Form I-9 completion and document inspection for new hires and for reverification of Forms I-9 for existing employees.

E-Verify Registration and Participation

Employers must be enrolled in E-Verify and be in good standing in order to use the new I-9 alternative procedure. E-Verify currently allows employers to enroll the entire company or to enroll certain company worksites in E-Verify. For employers that have enrolled only for specific worksites (called "hiring sites" in the Final Rule), the employer may only use the alternative procedure for individuals who are hired to work in those particular hiring sites.

E-Verify enrollment instructions and a description of employer obligations can be found here.

For Qualified Employers, Which Employees Can Complete Form I-9 Using the Alternative Procedure?

According to the comments in the Final Rule:

  • A qualified employer does not need to use the alternative procedure and may choose to continue to perform an in-person review of I-9 documentation.
  • If a qualified employer chooses to apply the alternative procedure to employees at an E-Verify hiring site, that employer must either:
    • Use the alternative procedure consistently for all employees at that site, without discrimination; or
    • Use 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. This dual approach is permissible "so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic, i.e., their citizenship, immigration status, or national origin."

Alternative Procedure for Completing Form I-9

Qualified employers may use the alternative procedure for document inspection for new hires and for I-9 reverification for existing employees whose I-9 documents are expiring. The procedure for each is as follows:

For New Hires:

Within three business days of an employee's first day of employment, a qualified employer (or an authorized representative acting on the employer's behalf, such as a third-party vendor) must:

  1. Receive clear copies (such as a scan or a picture) of I-9 identity and work authorization document(s) (front and back, if the document is two-sided) from the new hire.
  2. Examine copies of Form I-9 documents to ensure that the documentation presented reasonably appears to be genuine.
  3. Conduct a live video interaction with the new hire and review the same I-9 document(s) that were previously received to ensure that the documentation reasonably appears to be genuine and related to the individual.
  4. Indicate on the Form I-9 that an alternative procedure was used to examine documentation. The new Form I-9 will have a box that must be checked to confirm that the alternative procedure was used; for the existing Form I-9, the employer representative must write "alternative procedure" in the "Additional Information" field in Section 2.
  5. Retain a clear and legible copy of the documentation (front and back, if the documentation is two-sided).
  6. In the event of a Form I-9 audit or investigation by a relevant federal government official, make available copies of I-9 documents presented by the employee.

For Existing Employees Who Require I-9 Reverification:

Employers should use the same procedures as above. On the existing Form I-9 in Section 3 ("Reverification and Rehires"), the employer should write "alternative procedure" to confirm that it used the alternative procedure.

Impact of the Final Rule on the End of COVID-19 Flexibility Policy for Form I-9 Announced by DHS on May 4, 2023

The Final Rule addresses DHS's May 2023 announcement regarding the end of the temporary I-9 flexibility policy. The May 2023 announcement required that all employers perform an in-person inspection of identity and employment documents for I-9 purposes effective August 1, 2023, and required all employers that initially performed a remote examination of an employee's documents under the COVID–19 flexibilities between March 20, 2020 and July 31, 2023 to physically examine the employee's Form I–9 documents in the employee's physical presence by August 30, 2023.

The Final Rule clarifies and modifies these directives as follows:

  • Effective August 1, 2023, employers that are not qualified employers must perform an in-person inspection of identity and employment documents for all new hires, even if they do not report to a company location.
  • Employers that meet the definition of qualified employers as described above may choose to utilize the alternative procedure for I-9 completion (effective August 1) and are not required to perform in-person inspection of I-9 documentation.
  • By August 30, 2023, certain qualified employers that have been using temporary flexibilities to complete I-9s remotely may use the alternative procedure to perform the required inspection of documents previously presented remotely, if the employer:
    • Was enrolled in E-Verify at the time it performed a remote examination of an employee's Form I–9 documentation using the COVID–19 flexibilities, between March 20, 2020 and July 31, 2023; and
    • Created an E-Verify case for employees who were new hires (E-Verify is not required for I-9 reverification for existing employees).
  • Even for qualified employers, the Final Rule still requires a new inspection of I-9 documents that were initially inspected remotely. However, qualified employers that meet these criteria above may use the alternative procedure to conduct the inspection. For instance, if copies of the documents were received and copied, only the video interaction would need to be performed, and the qualified employer representative should write "alternative procedure" and the date of the video inspection to the Section 2 "Additional Information" field on Form I-9, or in Section 3 for a reverification.
  • Employers that are not qualified employers, and employers that are enrolled in E-Verify but do not meet the criteria listed above, must perform the required in-person physical inspection of identity and employment eligibility documents for all employees hired between March 20, 2020 and July 31, 2023, for whom only a virtual or remote examination under the flexibilities policy was conducted. This must be completed on or before August 30, 2023.

We note that a DHS press release states that ICE will "generally not focus its limited enforcement resources on Form I-9 verification violations" for failing to complete a physical document examination by the August 30 deadline if the employer has taken timely steps to complete the required physical inspections. However, this press release does not have the force of law, and we recommend that all employers comply with the August 30 deadline.

Mintz will publish additional guidance on this Final Rule when further details become available. Mintz will also host a webinar to discuss the new Final Rule, the new I-9 form, and any developments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

New DHS I-9 Regulation Provides Needed Flexibility To Certain Qualified Employers

United States Immigration

Contributor

Mintz is a general practice, full-service Am Law 100 law firm with more than 600 attorneys. We are headquartered in Boston and have additional US offices in Los Angeles, Miami, New York City, San Diego, San Francisco, and Washington, DC, as well as an office in Toronto, Canada.
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