As we reported earlier, there’s a new I-9 form, and you should be using it for all new hires. When U.S. Citizenship and Immigration Services (USCIS) announced the new form, it also informed us about new requirements for remote verification of I-9 documents. USCIS has dubbed this the alternative procedure. With workforces having gone remote due to COVID, employers were able to view those documents remotely—temporarily. Now, if you are a qualified employer, you are allowed to conduct Form I-9 remote documentation verification for any employee hired on or after August 1, 2023.
Qualified employers are those that are participants in good standing in federal E-Verify. Employers are in good standing if all of the following are true:
- They have enrolled in E-Verify for all hiring sites in the United States that use the alternative procedure.
- They are compliant with all E-Verify program requirements.
- They continue to be enrolled in E-Verify and are in good standing at any time when they use the alternative procedure.
Pros and Cons of Using E-Verify
E-Verify is the USCIS’s free system that compares information from an employee’s I-9 to data supplied by the federal government to confirm whether the individual is authorized to work in the United States. It’s optional for most employers, though some are required by federal or state law to participate. Notably, most federal contractors and subcontractors are required to use the system if the contract contains the Federal Acquisition Regulation (FAR) E-Verify clause.
Using the E-Verify system does not replace or alter any of the Form I-9 requirements, except that it now allows for remote verification via the “alternative procedure.” If you’re thinking about using E-Verify so you can continue (or start) to verify I-9 documents remotely, we recommend weighing the pros and cons of E-Verify and considering the required steps of the alternative procedure, which we’ve outlined below.
Pros
- E-Verify can help employers verify that an employee’s I-9 documents are genuine. The system is designed to reduce the risk of hiring undocumented workers. A primary advantage of using the E-Verify system is that the company may reduce its exposure to Department of Homeland Security (DHS) violations and fines. Proper use of E-Verify (assuming it’s based on a compliant I-9 process) acts as evidence that an employer is following employment eligibility laws.
- Employers that hire students who have F-1 visas and have received a bachelor’s, master’s, or doctoral degree in science, technology, engineering, or mathematics (STEM) fields can access a 24-month F-1 STEM extension of the student’s work authorization that is only available to E-Verify employers. More information is available here.
- Using E-Verify is a requirement for employers to use the alternative procedure for remote verification of I-9 documents.
Cons
- Use of the system adds another administrative step to the I-9 verification process with its own compliance requirements. E-Verify requires staff training as part of the enrollment process.
- By using E-Verify, employers agree to allow the Social Security Administration (SSA) and DHS to perform periodic audits of their hiring records. Using E-Verify also does not decrease the chance of an I-9 audit; it may even increase the likelihood if you have a pattern of noncompliance.
- Errors that might go undetected in the I-9 process may be subject to more scrutiny when your hiring data is stored in a government database. Employers should ensure their I-9 processes are compliant and ready to withstand inspection.
- E-Verify can’t always detect if an employee is using legitimate documents that belong to another person. That said, the E-Verify Memorandum of Understanding (MOU) states that there won’t be civil or criminal liability for actions taken in good faith based on information provided by E-Verify.
Alternative Procedure Steps
If you would like to use the alternative procedure, you’ll need to take the following steps within three business days of an employee’s first day of employment:
- Receive and examine copies of the employee’s Form I-9 documents (or an acceptable receipt) and determine if the documents appear to be genuine. If the documents are two-sided, employers need to examine copies of both the front and back.
- Conduct a live video meeting with the employee. The employee needs to bring the same documents that they sent to the employer so the employer can ensure that they reasonably appear to be genuine and relate to the employee.
- Check the box on Form I-9 (Rev. 08/01/23) that an “alternative procedure” was used to examine documentation to complete Section 2 or reverification.
- Retain clear and legible copies of all documents that the employee sent to complete Form I-9, regardless of whether the documents are from List A, List B, or List C.
Be advised that you can’t require employees to use the alternative procedure if they don’t want to, and you will need to perform an in-person examination for those unable or unwilling to participate in the remote verification process. This could arise when new employees don’t have access to the necessary technology or are uncomfortable transmitting sensitive personal information electronically, particularly if the employer hasn’t provided a secure way for them to do so.
Also, if you offer the alternative procedure at a particular hiring site, it needs to be offered to all employees at that site. If you prefer, you can offer the alternative procedure only to remote employees and do in-person inspection for onsite and hybrid employees. Employers can’t choose when to use remote or in-person verification based on a person’s or group of employees’ citizenship or immigration status, national origin, or any other protected characteristic.
Action Item
If you aren’t using E-Verify but want to utilize the alternative procedure, you should begin the enrollment process now. See what’s needed to enroll here.