Authorizes Remote Video Conference Inspection of I-9 Documents for Employers Using E-Verify
By Julie A. Pace, Heidi Nunn-Gilman, David A. Selden
I. USCIS RETURNS TO ONE PAGE FORM I-9
Today the USCIS released a new Form I-9, available at https://www.uscis.gov/i-9. The new Form I-9 largely returns to a one-page format, combining Sections 1 and 2 on one page. Section 3 is a separate standalone supplement that employers will use only as needed.
The new I-9 is also designed to be more accessible as a fillable form on tablets and mobile devices to allow employers more flexibility in using electronic devices to complete the Form I-9.
In addition, the instructions have been reduced from 15 pages to 8 pages.
Employers may begin to use the new Form I-9 immediately, but it is permissible to use the 10/21/2019 Form I-9 through October 31, 2023. All employers must use the new Form I-9 no later than November 1, 2023. It is important for employers to timely use the newest Form I-9, because using an expired Form I-9 can result in monetary penalties during an I-9 audit.
II. USCIS AUTHORIZES COMPANIES WHO USE E-VERIFY TO USE ALTERNATIVE PROCEDURE FOR REMOTE COMPLETION OF THE FORM I-9 THAT DOES NOT REQUIRE IN-PERSON INSPECTION OF ORIGINAL DOCUMENTS.
One of the most significant changes announced by USCIS is the alternative procedures for remotely completing Form I-9 without an in-person inspection of original I-9 documents. Companies that use E-Verify and are in good standing with E-Verify are eligible to use the new alternative procedures. To be in “good standing†with E-Verify requires that the Company:
- Enroll in E-Verify at every hiring location in the US that will use the alternative procedure;
- Be in compliance with the requirements of the E-Verify program; and
- Continue to be enrolled in and participate in E-Verify at any time during which the employer uses the alternative procedures.
The alternative procedures still require the employer to comply with the time-frames for completing the Form I-9. Employees must complete Section 1 of the Form I-9 on the first day of work and employers must complete Section 2 by the third business day after the employee’s first day of work.  To conduct the document inspection and complete Section 2 of the I-9 under the alternative procedures, the employer should take the following steps:
- Examine copies, including front and back, of the documents being used for purposes of completing the Form I-9 to ensure that the documents reasonably appear to be genuine.
- Conduct a live video interaction with the new employee to verify that the documents relate to the individual. The new hire must present the documents that the employee sent copies of via video for the employer representative to inspect via video conference.
- Complete Section 2 of the Form I-9 with the document information.  On the 10/21/19 version of the Form I-9 write in the “additional information†section “Alternative Procedure.â€Â On the new I-9 released on August 1, 2023, there is a box to check to indicate that you used the alternative procedure.
- The employer must maintain the copies of the I-9 supporting documents with the Form I-9 and make them available in the event of an I-9 audit.
Employees who do not want to provide copies of documents electronically cannot be required to use the alternative procedure. Companies must allow employees who are unable or unwilling to use the alternative procedure to provide documents for physical inspection.
III. THE ALTERNATIVE PRODECURE CAN BE USED TO VERIFY I-9s COMPLETED REMOTELY UNDER THE COVID-19 FLEXIBILITY.
Employers who were enrolled in and in good standing with the E-Verify program during the COVID-19 flexible remote procedures between March 20, 2020 and July 31, 2023, can use the new alternative procedure in lieu of conducting a physical inspection of the employee’s Form I-9 documents, provided that the employer created an E-Verify case for the remote hire at the time of completing the remote Form I-9. Employers must use the procedure described above and notate in the “additional information†box “alternative procedure†with the date of the live video interaction. This must be completed by August 30, 2023.
Employers who choose to use this alternative procedure should make it available to all impacted employees and not use it selectively in a manner that may be discriminatory.
Companies who were not enrolled in E-Verify at the time of the remote hire or who did not create an E-Verify case for the remote hire cannot use the alternative procedures and must have a company representative physically inspect the documents used to create the remote I-9 during the COVID-19 flexibilities.
IV. RECOMMENDATIONS RELATING TO THE FORM I-9
With I-9 fines as high as $2,700 per Form I-9 that contains errors, employers need to ensure that they are in compliance with the I-9s requirements. Employers should take steps to help promote I-9 and employment verification compliance, which could include but are not limited to:
- Ensure that all employees are completing Section 1 of the Form I-9 on their first day of work and that the Company fully completes the Form I-9 by the third day.
- Provide I-9 training to all employees who will complete Section 2 of the Form I-9 on behalf of the Company.
- Implement an immigration compliance policy and an E-Verify policy (if using E-Verify).
- Conduct regular internal I-9 audits and correct errors.
PSGM Law is available to help companies audit their current Form I-9s and help develop policies and strategies to promote I-9 compliance. We regularly conduct internal I-9 reviews and train companies on I-9, E-Verify and immigration law compliance. Prepare now to be ready if ICE comes knocking.
