Remote I-9 Verification Here to Stay for Eligible Employers

Employers were given flexibility to remotely review I-9 documents during the COVID-19 pandemic using E-Verify. Thanks to the U.S. Department of Homeland Security’s recent Final Rule, this option is now permanent, and certain employers can continue verifying employees' I-9 documents remotely.

The new rule, published in the Federal Register on July 25, went into effect Aug. 1, a day after the pandemic flexibilities were set to expire. It will only apply to workers hired after the regulation's effective date.

How Have I-9 Verification Requirements Changed?

The I-9 form is completed by employers (primarily HR professionals) to verify the eligibility of workers for employment in the U.S. In the past, employees were required to meet with their employers in person to provide specific documents, such as social security cards, passports, driver's licenses or permanent resident cards, to prove their eligibility to work. The form I-9 was revised effective Aug. 1, 2023, through a final rule published in the Federal Register on July 25, 2023. Employers may use the old version of form I-9 dated Oct. 21, 2019, until Oct. 31, 2023. By Nov. 1, 2023, all employers must utilize the new form I-9.

The new Form I–9 contains two sections and two supplements. Section 1 of the form collects, at the time of hire, identifying information about the employee (and preparer or translator if used), and requires the employee to attest to whether the employee is a U.S. citizen, noncitizen national, lawful permanent resident, or noncitizen authorized to work in the United States. Section 2 of the form collects, within three days of the employee's hire, identifying information about the employer and information regarding the employee's identity and employment authorization. Until recently, all employees would need to present original documentation evidencing the employee's identity and employment authorization. Employers were required to review that documentation under the old system.  

But under the new rule that went into effect Aug. 1, E-Verify employers can complete the form I-9 remotely when onboarding new employees by conducting video interviews with employees as part of the document verification process. Employers will need to keep "clear and legible copies" of every document handed over by employees related to the I-9 verification form in case DHS audits employer compliance. Additionally, the updated I-9 form will include a box that employers need to check if using the alternative verification method. The new form will be easy to download and complete on both computers and mobile devices. 

Before COVID-19, in-person processing of the form I-9 was the norm. But DHS suspended the in-person requirement in March 2020 due to the pandemic, allowing remote verification instead. The temporary COVID-19 flexibilities were set to expire on July 31, and most employers expected to resume conducting physical inspection of identity and employment eligibility documents after this time. This caused concern among many HR professionals who had been managing flexible workforces and policies since the pandemic. The flexibility deadline was later extended to Aug. 30 for certain employers.

How Does the New Rule Help Employers?

This new rule provides more certainty about the remote rules of engagement that apply to eligible E-Verify employers. It grants a form I-9 processing exemption to employers enrolled in E-Verify. Those employers do not need to comply with the physical document examination requirement. This offers relief to employers facing challenges completing the necessary physical inspection of documents.

The future of work is flexible, and the decision to make remote verification permanent was based on public input urging DHS to maintain some flexibility in the I-9 compliance process. The DHS seems to acknowledge the shift in work patterns brought about by the pandemic, with many employees continuing to work from home. Requiring in-person document reviews for every new hire would be burdensome and costly for employers who are now working remotely as a new business norm. The remote verification option aligns with current business realities that will likely continue. 

Under the new framework, employers must use the updated form I-9, which can be found at www.uscis.gov. The previous form I-9 version is acceptable until Oct. 31.

Please contact Brandon Davis of Phelps’ Immigration team if you have questions or need compliance advice and guidance.