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New Form I-9 and Remote Verification for E-Verify Employers
July 21, 2023
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Today USCIS announced a new version of Form I-9, in addition to remote review of I-9 documents for employers participating in E-Verify.
On March 20, 2020, ICE made an announcement on its website regarding precautions related to COVID-19. As a result, employers were allowed to defer the physical examination requirements for Form I-9. This meant that they could remotely inspect the Form I-9 documents using virtual methods (e.g., via video link, fax, or email) within three business days of the employee's first day of employment. If conducting remote inspections, the employer had to obtain, inspect, and keep copies of the documents within three business days. They were also required to indicate "COVID-19" as the reason for the physical examination delay in the "Additional Information" field of the Form I-9.
Once regular operations resumed, employers were obligated to physically examine the documents and enter the notation "documents physically examined" along with the inspection date in the "Additional Information" section of the Form I-9. Initially, the provisions were allowed for 60 days from the date of the notice or within three business days after the termination of the national emergency, whichever came first.
These guidelines were originally applicable only to employers and workplaces operating remotely. The guidance emphasized that if there were employees physically present at a work location, in-person verification of identity and employment eligibility documentation for Form I-9 would remain unchanged at that time. However, in cases where newly hired or existing employees were subject to COVID-19 quarantine or lockdown protocols, the Department of Homeland Security (DHS) would evaluate these situations on a case-by-case basis.
During the ongoing COVID-19 national emergency, ICE regularly extended an announcement it made on March 20, 2020. On March 31, 2021, ICE provided an update, stating that starting from April 1, 2021, only employees who physically reported to a company's location on a regular, consistent, or predictable basis were required to undergo an in-person examination of their Form I-9 identity and employment eligibility documentation.
Employees hired on or after April 1, 2021, who exclusively worked remotely due to COVID-19-related precautions, were temporarily exempted from the physical examination of their Form I-9 documents until they began working on-site regularly or until the extension of these flexibilities was terminated, whichever came first.
Due to the continued impact of the COVID-19 pandemic, ICE extended these flexibilities multiple times. Earlier this year, ICE announced the end of the temporary flexibilities expiring on July 31, 2023; giving employers 30 days, until August 30, 2023, to physically inspect work authorization and identification documents for those employees hired using the flexibilities.
Subsequently, on October 26, 2021, USCIS invited public input on document examination practices associated with Form I-9 by publishing a notice in the Federal Register. The response included 315 public comments, with the vast majority supporting a remote document examination option, as it reduced burdens on both employers and employees. While some commenters raised concerns about document fraud, others suggested measures to address and minimize such risks.
A permanent alternative to physical document examinations for some employers who qualify with specific parameters will also be available. The alternative options are expected to be available to qualifying employers August 1, 2023.
New Alternative Options to Physical Document Inspection
Starting from August 1, 2023, qualified employers may use the alternative procedure for verifying employee identity and employment authorization. However, this procedure cannot be applied to employees hired before the effective date of the notice, except for specific outlined circumstances. Other employers who are not enrolled in E-Verify can use the alternative procedure after becoming a participant in good standing by enrolling in E-Verify and completing the required training.
Currently, the alternative procedure is exclusively available to qualified employers, which means those who are participants in good standing in the E-Verify system. A participant in good standing in E-Verify is an employer who has enrolled in the E-Verify program for all hiring sites within the United States that are using the alternative procedure. This employer must also comply with all E-Verify program requirements, including verifying the employment eligibility of newly hired employees in the United States.
Additionally, the employer must maintain its participant status in good standing in E-Verify while using the alternative procedure. The alternative procedure does not have a set expiration date but may be amended or canceled by the Department of Homeland Security (DHS) if necessary. Any changes to the alternative procedure will be announced by the Secretary, and public comment may be sought through the Federal Register, if appropriate.
Qualified employers must allow employees the option to choose whether they want to use the alternative procedure or submit documentation for physical examination. If an employee prefers to have their documents physically examined, the employer must comply with that request.
To verify the authenticity of the documents, the qualified employer (or their authorized representative) must examine copies of the documents presented by the employee and conduct a live video interaction with the employee to ensure that the documentation corresponds to the individual. During the live video interaction, the employee must transmit a copy of the document(s) to the employer and then present the same document(s) for verification.
Under this alternative procedure, qualified employers (those who are participants in good standing in the E-Verify system) have the option to conduct the verification process remotely through live video interactions with employees, instead of in-person meetings. Here's a summary of what the alternative procedure entails:
- Remote Verification: Instead of physically examining original documents in-person, the qualified employer can examine copies (front and back, if applicable) of Form I-9 documents or acceptable receipts presented by the employee remotely.
- Live Video Interaction: The employer must conduct a live video interaction with the employee presenting the documents. During this interaction, the employee is required to transmit copies of the documents to the employer and then present the same documents during the live video session to ensure authenticity.
- Indication on Form I-9: The employer must indicate on the Form I-9 that an alternative procedure was used for document examination by completing the corresponding box in Section 2 or for reverification, as applicable.
- Retention of Copies: Qualified employers using the alternative procedure must retain clear and legible copies of the documents (front and back, if applicable) in accordance with relevant regulations.
- Compliance with Audits: In the event of a Form I-9 audit or investigation by a relevant federal government official, the employer must make clear and legible copies of the identity and employment authorization documentation presented by the employee available for examination in connection with the employment eligibility verification process.
It's important to note that these alternative procedures are only available to qualified employers who are participants in good standing in E-Verify. Additionally, the new edition of Form I-9, effective from August 1, 2023, must be used when indicating the use of the alternative procedure on the form. Check out our infographic for a quick guide on the remote I-9 verification process.
If a qualified employer decides to utilize the alternative procedure for new employees at an E-Verify hiring site, it must apply this procedure consistently for all employees at that site. However, the employer has the option to offer the alternative procedure only for remote hires while continuing to use physical examination procedures for all employees who work onsite or in a hybrid capacity. The employer must ensure that this decision is not based on discriminatory purposes and that employees are not treated differently based on their citizenship, immigration status, or national origin.
As mentioned above DHS will also make a new version of Form I-9 available.
Learn how GryphonHR can help you streamline Form I-9 and E-Verify compliance requirements with an integrated electronic I-9 solution that makes processing E-Verify cases easier and faster. Get in touch with us or sign-up for a plan today!
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With hiring processes more complex than ever, E-Verify offers HR teams a streamlined, efficient way to confirm the work eligibility of new hires. However, navigating the E-Verify system can be overwhelming for HR professionals, especially as legal compliance around employment eligibility intensifies. Fortunately, technological solutions, such as GryphonHR’s platform, make E-Verify faster, more secure, and easier to integrate with existing systems. This guide walks you through the E-Verify process step-by-step, offering insights on how HR technology simplifies each stage for a seamless experience. Step 1: Registering with E-Verify Process Overview To start using E-Verify, your organization must first enroll in the system. Registration is typically straightforward but involves a few important steps to ensure compliance and user security. Steps to Register: Visit the E-Verify Website : Go to the official E-Verify website (www.e-verify.gov) and select the option to "Enroll." Read and Accept the Terms : You will need to review and agree to the program rules, and establish an Enrollment Point of Contact. This person is responsible for managing the E-Verify enrollment process for your company. Enter Company Information : Input basic company details, such as business address, Employer Identification Number (EIN), and industry type. Create User Accounts : Identify which employees will have access to E-Verify. Each will need a secure account with unique login credentials. How HR Technology helps: HR technology solutions can simplify registration by securely storing and managing information required for enrollment, reducing the time spent on administrative tasks. Many HR platforms also integrate directly with E-Verify, allowing for easier user access and management. Step 2: Gathering Necessary Employee Documentation Process Overview To complete an E-Verify check, employees need to provide documents that confirm both identity and eligibility to work in the U.S. Typically, this step involves I-9 Form documentation, such as a passport or a combination of documents (e.g., driver’s license and Social Security card). Note that a Social Security Number is required to create a case in E-Verify. Steps for Documentation Gathering: Complete Form I-9 : Collect the employee's I-9 form and ensure all information is accurate. Verify Acceptable Documents : Cross-check that the documents provided are valid and current. Retain Copies (if applicable) : Although not required by E-Verify, retaining copies of I-9 documents may help with internal recordkeeping. How HR Technology Helps: HR tech tools streamline this stage by incorporating automatic prompts to verify which documents are acceptable, automatically filling out fields, and securely storing these documents to prevent loss and unauthorized access. Step 3: Initiating the E-Verify Process for a New Hire Process Overview Once documentation is ready, you can enter the information into E-Verify to confirm work eligibility. This step involves several sub-steps and should be completed within three days of the employee’s start date. Steps to Initiate E-Verify: Log in to E-Verify : Access your account through a secure connection. Select “New Case” : Start a new case for each employee. Enter Employee Details : Input information from the I-9 form, including the employee’s name, Social Security number, and document numbers. Review and Confirm : Double-check the accuracy of all entries and submit the case for verification. How HR Technology Helps: Platforms that integrate with E-Verify allow HR teams to initiate and complete E-Verify cases without leaving their existing HR system. This integration minimizes data entry errors, reduces manual input time, and allows for real-time tracking. Step 4: Reviewing E-Verify Results Process Overview After submitting a case, E-Verify will typically respond within seconds. There are three potential responses: Employment Authorized : The employee is authorized to work in the U.S. Tentative Nonconfirmation (TNC) : There is an issue with the information provided. HR must notify the employee, who can contest the TNC. Case in Continuance : Additional verification is required. Steps for Reviewing Results: Check Case Status : Log in to E-Verify to view the case results. Follow Up as Necessary : If there is a TNC, notify the employee within the E-Verify timeline and provide guidance for contesting if they wish. Close the Case : Once resolved, close the case in E-Verify. How HR Technology Helps: HR tech systems can set reminders for case follow-ups, and many solutions offer automated notification systems that alert employees to TNCs directly, simplifying the process for both HR and employees. Additionally, systems often include dashboards that make tracking case statuses easier. Step 5: Managing and Auditing E-Verify Records Process Overview Maintaining compliance with E-Verify involves ongoing management and periodic audits. This includes ensuring that all cases are closed, TNCs are resolved, and records are retained as per legal requirements. Steps for Managing Records: Retain I-9 and E-Verify Records : Store all relevant records in a secure location, either physically or digitally. Conduct Regular Audits : Periodically review E-Verify compliance and documentation practices. Close Out Records for Former Employees : Manage inactive employee records per the organization’s policy and E-Verify retention guidelines. How HR Technology Helps: HR tech platforms offer secure storage solutions that automatically organize E-Verify and I-9 records, making audits more efficient. Many systems provide reporting tools to generate compliance reports, track verification timelines, and keep HR teams ahead of regulatory requirements. Navigating the E-Verify process can be complex, but HR tech significantly simplifies it by automating and securing each step, from registration to case management and auditing. By integrating E-Verify into your HR systems, you not only ensure compliance but also create a smoother onboarding experience for employees and a more efficient workflow for your HR team. Whether you’re onboarding a few hires or managing a large team, leveraging HR tech makes E-Verify a fast, reliable process for employment eligibility verification.
Why E-Verify use should be a priority for employers who value workplace integrity, want to bring ease and efficiency to the hiring process, and reduce their legal risks.
Navigate remote I-9 verifications and get expert insights, best practices and more in this guide.
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