DHS I-9 UPDATE: Department of Homeland Security Announces Remote Verification of I-9 Documents Will Be a Permanent Option
On July 25, 2023, the Department of Homeland Security (DHS) released a final rule that allows qualified employers to continue verifying employees’ I-9 employment authorization documents remotely, subject to certain eligibility requirements and procedural steps that must be followed for remote verification.
The Final Rule - Generally
As discussed in last week’s blog post, during the COVID-19 pandemic, DHS announced flexibilities related to Form I-9 compliance, but subsequently announced that the flexibilities would expire on July 31, and that employers would need to physically verify employee identification and employment authorization documentation previously submitted remotely under the flexibilities by the end of August.[1] Although this deadline to re-verify employee documentation applies to all employers who previously submitted remote verification under the flexibilities, only employers who do not participate in E-Verify or who are not in good standing with E-Verify will have to physically re-verify. Otherwise, eligible employers may fulfill the re-verification requirement by utilizing the alternate option outlined in DHS's final rule.
Pursuant to DHS’s final rule published on July 25, 2023 and in furtherance of its pandemic-era policies, DHS is allowing eligible employers to continue with remote verification, subject to the requirements described below based on its pandemic-era policy. Effective
August 1, 2023, eligible employers enrolled in E-Verify that are in good standing may continue to remotely verify the required documents of their employees.[2] DHS guidance explains, “[t]his rule responds to lessons learned during the COVID-19 pandemic, which demonstrated the substantial practical benefits of an optional alternative to the physical documentation examination procedures required by the employment eligibility verification regulations.”[3]
Employers who wish to continue to remotely verify the employment authorization documents of their employees must ensure the following happens within three business days of the employee’s first day of employment:
1) The employee must transmit a double-sided (if applicable) copy of I–9 employment authorization documents to the employer;
2) The employer must examine the copies of the I-9 documentation provided to ensure that the documentation appears to be reasonably genuine;
3) The employer then must conduct a live video interaction with the employee who presented the documentation in order to ensure the documentation reasonably appears to be genuine and related to the employee;
4) The employer will then indicate on the Form I–9 (by completing the corresponding box) that an alternative procedure was used to examine documentation to complete Section 2;
5) The employer must retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back, if applicable); and
6) In the event of a Form I–9 audit or investigation by a relevant federal government official, the employer must make available 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.[4]
Considerations for Colorado Employers
For qualified employers intending to utilize the remote alternative verification process, vigilance and strict compliance with all requirements set forth by DHS is crucial. Failure to do so could prove costly, as noncompliance with I-9 requirements may lead to serious consequences, such as civil fines or even criminal penalties for employers.[5] Civil fines range from $252.00 to $2,507.00 per Form I-9 violation.[6] As always, Campbell Litigation is available to assist employers with these and other employment law-related matters.
[1] https://www.rockymountainemployersblog.com/blog/2023/7/20/employers-have-until-august-30-2023-to-physically-verify-employment-authorization-documents-of-employees-verified-under-the-remote-i-9-flexibilities
[2] https://www.federalregister.gov/documents/2023/07/25/2023-15532/optional-alternatives-to-the-physical-document-examination-associated-with-employment-eligibility
[3] Id.
[4] Id.
[5] https://www.ice.gov/factsheets/i9-inspection.
[6] https://www.federalregister.gov/documents/2022/01/11/2022-00105/civil-monetary-penalty-adjustments-for-inflation.