It’s rare that the Form I-9 makes headlines, but tomorrow will be one of those rare occasions!  On June 21, 2023, the Department of Homeland Security (“DHS”) announced that on July 25, 2023, it will issue its final rule on the “Optional Alternatives to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9),” referred to as the “Alternative Process.”

The final rule amends the Form I-9 regulations to allow employers the options of utilizing “alternative document examination procedures.” This is a huge relief for employers who have adopted permanent telework and remote work arrangements over the past several years.

Before you get too excited, though, there is a catch! 

Alternative Process Requirements

To take advantage of the Alternative Process, employers must:

• Enroll in and participate in good standing in E-Verify. Employers who have been remotely verifying documents under the COVID-era “Flexibility” process must discontinue remote verification on July 31, 2023, if they are not enrolled in E‑Verify.
• Within three business days of an employee’s first day of employment, examine the front and back of all documents used to certify the Form I-9, conduct a live video interaction with the individual (cameras on!) to confirm the document reasonably appears genuine and related to the individual presenting it, and complete Section 2 of the Form I-9.
• Retain clear and legible copies of all documents presented.
• Indicate on the Form I-9 that the Alternative Process was used to examine documents. Although the current Form does not include this information, a new version of the Form will be available on August 1, 2023, and will include this information.

Employers must make clear and legible copies of the documents used during the Alternative Process available to government officials in the event of an audit.

Flexibility Re-Verification

              Between March 20, 2020, and July 31, 2023, DHS has permitted employers some flexibility to remotely inspect Form I-9 documentation for new hires. However, this verification is only valid temporarily, and employers are required to physically inspect an employee’s documentation when they returned to the workplace or when the flexibility period ended. With the flexibility ending later this week, employers have until August 30, 2023, to reverify the Form I-9 documentation for any employee they previously remote verified.

              The new rule provides an alternative for this reverification as well, but only for employers who were participating in E-Verify at the time the employer originally verified the documentation remotely. In other words, employers who have not been enrolled in E-Verify must physically inspect documents in-person for employees hired under the Form I-9 flexibility by August 30, 2023, as previously announced. 

Other Key Points

Employers qualified to utilize the Alternative Process may only do so for employees working remotely. Employers must still physically inspect documents for employees working in-person or in a hybrid capacity. Employers do not need to use the Alternative Process for all employees; however, this decision should not be based on any protected characteristic. For example, an employer may use the Alternative Process only for employees who permanently telework in certain states or areas where they do not have physical offices, but they cannot use the Alternative Process only for employees who are U.S. Citizens.

New Form I-9

              DHS will issue a new version of the Form I-9 effective August 1, 2023, (Rev. 08/01/23). Employers may use the current version of the Form (Rev. 10/21/19) until October 31, 2023, without penalty. However, we recommend employers implement the new version as soon as possible to avoid any possible challenges.

              The new Form I-9 continues to collect the employee’s information and attestation as to citizenship status in Section 1, and the employer’s confirmation of the employee’s identity and work authorization in Section 2.  However, it moves the Preparer and/or Translator Certification and the Reverification and Rehire into two separate supplements. This change allows the Form to be a single-sided sheet with additional supplements to be used only as needed. Employers also will notice changes within the content of the Form, such as changing the term “alien authorized to work” to “noncitizen authorized to work,” updates to the anti-discrimination notices, revised Lists of Acceptable documents to include acceptable receipts and information about auto-extended employment authorization documents, and the checkbox for the Alternative Process listed above.

              Shaw Law Group is offering an interactive “live” webinar addressing the new Form I-9 rules and the E-Verify process on August 17, 2023, from 9:00 a.m. to 10:00 a.m., California time.  Click here to register.  In the meantime, reach out to us if you have any questions!