DHS Announces New Alternative Approach To Verifying I-9 Employment Eligibility

On July 21, 2023, the U.S. Department of Homeland Security (DHS) announced a new final rule, which provides an alternative procedure for employers to verify employment eligibility.

The alternative procedure took effect on August 1, 2023, and is available for employers who are participants in good standing in E-Verify, a web-based system through which employers electronically confirm the employment eligibility of their employees.

Employers must verify the employment eligibility of newly hired employees within three business days of their first day of employment and must re-verify the employment eligibility of existing employees as required by law and regulation.  Generally, employers are required to verify employment eligibility through a physical, in person examination of the employee’s Form I-9 documents.  Under the new final rule, the alternative procedure provides a substitute to this physical, in person examination requirement.

According to the final rule, the alternative procedure is as follows:

1. Collect from the employee copies (front and back, if the document is two-sided) of Form I–9 documents or an acceptable receipt and examine such documents to ensure that the documentation presented reasonably appears to be genuine;
2. Conduct a live video interaction with the employee presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the employee. During the live video interaction, the employee must present the same document(s) that the employee transmitted to the employer in Step 1;
3. Indicate on the new Employment Eligibility Verification Form I–9 (effective August 1, 2023 – July 31, 2026), by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable. If using the prior Employment Eligibility Verification Form I–9 (October 19, 2019 – October 31, 2023), indicate in Section 2 in the Additional Information field that the alternative approach was used;
4. Retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back if the documentation is two-sided); and
5. In the event of a Form I–9 audit or investigation by a relevant federal government official, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.

Adopting the alternative procedure is entirely optional.  However, employers who choose to adopt the alternative procedure must either (a) adopt it consistently for all employees or (b) adopt it just for employees who perform remote work only and continue to apply the physical, in person examination procedures to any and all employees who work onsite or in a hybrid capacity.  If employers choose to differentiate between remote only workers and onsite and hybrid workers in this manner, such practice cannot be adopted for a discriminatory purpose or to treat employees differently based on a protected characteristic.

While the alternative procedure does not have an expiration date, the DHS Secretary has the authority to amend or cancel it.  The final rule from the DHS is available here.

On August 1, 2023, DHS also launched a new version of the Employment Eligibility Verification Form, which reflects a number of updates, including a new box that eligible employers must check if the employee’s Form I–9 documentation was examined under the alternative procedure set forth above.  The new Employment Eligibility Verification Form is available on the U.S. Citizenship and Immigration Services website, and employers may begin using the new Form immediately.  On November 1, 2023, the new Employment Eligibility Verification Form will become standard and the old form will expire.