DHS authorizes optional remote Form I-9 document examination for E-Verify employers

Validated finding · five-country-2010-20260922-v118-evidence-presentation-fix

Operative dateAugust 1, 2023

CategoryWork, other

Policy toolProcessing

Affected groupQualified employers who are participants in good standing in e-verify and their newly hired or reverified employees completing form i-9

Policy effect

U.S. Immigration and Customs Enforcement (ICE) announced the authorization of an optional alternative procedure to the in-person physical examination of documentation presented by individuals seeking to establish identity and employment authorization for Form I-9, Employment Eligibility Verification. The alternative procedure is available beginning August 1, 2023, only to qualified employers who are participants in good standing in E-Verify (enrolled with respect to all hiring sites using the procedure and in compliance with all E-Verify requirements). To use the procedure within three business days of an employee's first day of employment, employers or authorized representatives must: (1) examine copies (front and back if two-sided) of Form I-9 documents or acceptable receipts to ensure they reasonably appear genuine; (2) conduct a live video interaction with the individual presenting the documents, after the employee transmits a copy and then presents the same documents during the video; (3) indicate on the Form I-9 by completing the corresponding box that an alternative procedure was used; (4) retain a clear and legible copy of the documentation (front and back if two-sided); and (5) make these copies available in the event of a Form I-9 audit or investigation. Employers choosing to offer the alternative procedure must do so consistently for all employees at an E-Verify hiring site, though they may choose to offer it for remote hires only while applying physical examination to onsite or hybrid employees without discriminatory purpose. Employers must also allow employees who are unable or unwilling to submit documentation via the alternative procedure to submit documentation for physical examination. Furthermore, qualified employers who were enrolled in E-Verify at the time of a remote examination under COVID-19 temporary flexibilities between March 20, 2020, and July 31, 2023, and created an E-Verify case (except for reverification) can use the alternative procedure to satisfy the required physical examination by adding 'alternative procedure' and the live video interaction date to the Form I-9 Section 2 Additional Information field or Section 3. Employers may continue using the prior Form I-9 edition (10/21/2019) through October 31, 2023, writing 'alternative procedure' in the Additional Information field, but must use the August 1, 2023 edition no later than November 1, 2023.

Conditions and exceptions

Validated condition or limit: Immigration and Customs Enforcement (ICE) announced the authorization of an optional alternative procedure to the in-person physical examination of documentation presented by individuals seeking to establish identity and employment authorization for Form I-9, Employment Eligibility Verification.; The alternative procedure is available beginning August 1, 2023, only to qualified employers who are participants in good standing in E-Verify (enrolled with respect to all hiring sites using the procedure and in compliance with all E-Verify requirements).; To use the procedure within three business days of an employee's first day of employment, employers or authorized representatives must: (1) examine copies (front and back if two-sided) of Form I-9 documents or acceptable receipts to ensure they reasonably appear genuine; (2) conduct a live video interaction with the individual presenting…

Official source excerpt

Quoted verbatim from the official source below. Ellipses indicate omitted text.

Federal Register, Volume 88 Issue 141 (Tuesday, July 25, 2023) [Federal Register Volume 88, Number 141 (Tuesday, July 25, 2023)] [Rules and Regulations] [Pages 47749-47754] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 2023-15533] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF HOMELAND SECURITY 8 CFR Part 274a [DHS Docket No. ICEB-2021-0010] RIN 1653-AA86 Optional Alternative 1 to the Physical Document Examination Associated With Employment Eligibility Verification (Form I-9) AGENCY: U.S. Immigration and Customs Enforcement, Department of Homeland Security. ACTION: Authorization of alternative procedure. ----------------------------------------------------------------------- SUMMARY: U.S. Immigration and Customs Enforcement is announcing the authorization of an optional alternative procedure to the in-person physical examination of the documentation presented by individuals seeking to establish identity and employment authorization for the purpose of completing the Form I-9, Employment Eligibility Verification (Form I-9). DATES: The alternative procedure is available beginning on August 1, 2023. FOR FURTHER INFORMATION CONTACT: Sharon Hageman, Deputy Assistant Director, Office of Regulatory Affairs and Policy, U.S. Immigration and Customs Enforcement, Department of Homeland Security, 500 12th Street SW, Washington, DC 20536. Telephone 202-732-6960 (not a toll-free number). SUPPLEMENTARY INFORMATION: I. Background and Purpose A. Final Rule This action accompanies a DHS final rule, Optional Alternatives to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9), that appears in this edition of the Federal Register. Under the rule, the Secretary of Homeland Security (the Secretary) may, as an optional alternative to the in- person physical document examination (physical examination) method employers have followed as part of the Form I-9 process set forth in current regulations, authorize alternative documentation examination procedures. [[Page 47750]] The Secretary may authorize alternative documentation examination procedures with respect to some or all employers as part of a pilot program, or upon a determination that such procedures offer an equivalent level of security, or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services (pursuant to Section 319 of the Public Health Service Act) or a national emergency declared by the President (pursuant to Sections 201 and 301 of the National Emergencies Act). Consistent with that rule and following consideration of the public comments received on the notice of proposed rulemaking (NPRM) that preceded issuance of the final rule, this notice introduces the parameters of an alternative procedure to complete the Form I-9.\1\ … \1\ This notice incorporates the statement of basis and purpose and discussion of public comments contained in the accompanying rule. --------------------------------------------------------------------------- B. Form I-9 Physical Examination Requirements Separate from the Form I-9 flexibilities that were announced by DHS during the COVID-19 national emergency,\2\ current regulations for the Form I-9 require that, within three business days after the first day of employment (i.e., the first day of work in exchange for wages or other remuneration), employers must physically examine the documentation presented by new employees from the Lists of Acceptable Documents (``Form I-9 documents''),\3\ or an acceptable receipt,\4\ to ensure that the documentation presented reasonably appears to be genuine and to relate to the individual who presents it. See 8 CFR 274a.2(b)(1)(ii)(A), (b)(1)(vi). Employers must then complete Section 2, ``Employer Review and Verification,'' of the Form I-9. See 8 CFR 274a.2(b)(1)(ii)(B). If reverification is required, the employee or referred individual must present a document that shows continued employment authorization or a new grant of employment authorization. See 8 CFR 274a.2(b)(1)(vii). If the employer rehires an individual for whom it previously completed the Form I-9 and complied with the corresponding verification requirements, the employer may inspect the original Form I-9. See 8 CFR 274a.2(c). If the rehired employee's employment authorization, as noted on the original Form I-9, is expired when the individual is rehired, the employer must conduct reverification. See 8 CFR 274a.2(c). Employers cannot discriminate against employees based on citizenship, immigration status, or national origin during the Form I-9 process. See, e.g., 8 U.S.C. 1324b. --------------------------------------------------------------------------- \2\ The last announcement, issued on October 11, 2022, extended the Form I-9 flexibilities first announced in March 2020 until July 31, 2023. \3\ The Lists of Acceptable Documents is part of Form I-9 at https://www.uscis.gov/sites/default/files/document/forms/i-9-paper-version.pdf (last visited on June 1, 2023). \4\ Occasionally, employees may present a ``receipt'' in place of a List A, B, or C document. An acceptable receipt is valid for a specified period of time so an employer can complete the Form I-9. Employers cannot accept receipts if employment will last less than three days. An acceptable receipt may be a receipt for the application to replace a List A, B, or C document that was lost, stolen, or damaged; the arrival portion of Form I-94 (Arrival/ Departure Record) with a temporary Form I-551 stamp and a photograph of the individual; the departure portion of Form I-94 (Arrival/ Departure Record) with an unexpired refugee admission stamp; or an admission code of ``RE.'' See USCIS, Handbook for Employers, M-274, available at https://www.uscis.g …

Immigration New ZealandDHS optional alternative FormI-9 document examination procedure, FR2023-15533,88FR47749,25July2023; operative1August2023. Full original text including footnotes retained.Open official source

Retrieved from https://www.govinfo.gov/content/pkg/FR-2023-07-25/html/2023-15533.htm

Review method

Source-based draft with independent Gemini 3.8 Flash verification

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DHS authorizes optional remote Form I-9 document examination for E-Verify employers

Policy effect

Conditions and exceptions

Official source excerpt

Review method

Other United States changes operative in 2023