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USCIS announced on July 21, 2023, that it would be published a revised version of Form I-9, that allows U.S. employers to virtually inspect the I-9 documents of an employee starting August 01, 2023 (authorized by the Department of Homeland Security).
With this update, the Department of Homeland Security (DHS) will publish a new rule on July 25, 2023, allowing employers with "good standing" in E-Verify to be able to verify I-9 documents for employees electronically.
FAQ: Form I-9 virtual docs verification Inspection
Here are the highlights of what employers should be aware of with the new rule:
When will the new rule be published?
DHS is set to publish the new rule on virtual document verification on July 25, 2023.
Will the alternative inspection expire at some point?
No. Unlike the Covid-19 rules, this rule does not expire.
Can I use the virtual inspection for onsite employees as well?
Yes. The rule allows the employer to use the alternative verification method for any or all employees on a worksite as long as the practice does not discriminate against employees based on their citizenship, immigration status, or national origin.
What does the rule say?
The rule chalks out the procedure of using an "alternative" method to verify employee documents. At a high level:
The employee should provide clear copies of the front and back of the I-9 documents.
The employer should conduct a live video with the employee to ensure that the document appears genuine and related to the employee.
Indicate on the I-9 form that an "alternative" method was used.
Create the case for the newly hired employee on the E-Verify website.
Retain a clear and legible copy of all documents (front and back) presented by the employee.
Is virtual verification as secure as physical verification?
The Department of Homeland Security has determined that taking the following steps offers virtual/electronic verification "at least equivalent level of security as compared to physical document examination":
Limiting participation to E-Verify participants in "good standing"
Expanding document retention requirements to include clear and legible copies
Requiring training through E-Verify
Conducting a live video interaction "after" the employee submits their document(s)
Is there a new I-9 form for this rule?
Yes. USCIS will publish the revised version of the I-9 form on August 01, 2023. Starting in August, the employer should use the I-9 form with a version date of 08/01/2023.
Who benefits from this rule?
This rule only allows US employers with a "good standing" status in E-Verify to utilize the alternative verification method.
What does "good standing" in E-Verify mean?
An employer in good standing in E-Verify should -
Have enrolled in E-Verify for all hiring sites in the US
Have complied with all requirements of the E-Verify program
Continue to be enrolled and a participant in good standing in E-Verify
Consult your employment counsel
All these details are just for informational purposes. Please do not consider these as legal opinions. There are many intricate details about the new rule and its implementation. Therefore, we recommend that you talk to your employment counsel for the best advice and next steps.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.