Saved by the Bell: Qualified Employers May Now Verify Employment Eligibility Remotely

Starting August 1, 2023, “qualified employers” will have the permanent option to complete I-9 employment eligibility verifications remotely. This option comes as a relief to many employers who were left scrambling to physically review I-9s in-person for employees hired during the pandemic.

Due to social distancing precautions implemented by employers during the pandemic, the Department of Homeland Security (“DHS”) temporarily authorized employers to review I-9 documentation remotely.  DHS requires all new hires to complete an I-9, regardless of immigration or citizenship status, and requires employers to inspect documents establishing identity and work authorizations. During the pandemic many employers performed those verifications remotely. Thanks to this new option, “qualified employers” will be able to continue to do so. “Qualified employers” are employers in compliance with and in good standing with all requirements of the E-Verify program.

Under this new option, qualified employers will be able to examine copies of I-9 documents within three days of a worker’s start date, have a live video interaction with the worker to ensure the documents appear to be genuine, and check a box on the I-9 form indicating a remote process was used. Please note however that under no circumstances can employers unlawfully discriminate such as by deciding who is eligible for the use of the remote option based on their employees’ citizenship, immigration status, or national origin.

What Happens Now?

While qualified employers now have the option to perform I-9 documentation verifications in-person or remotely, all other employers will be required to perform such verifications in person. Additionally, qualified employers that: (1) were enrolled in E-Verify at the time they performed a remote examination of an employee’s Form I-9 document or a reverification between March 20, 2020 and July 31, 2023, and (2) created an E-Verify case for that employee can use the new remote option to satisfy I-9 documentation requirements. However, employers that do not meet those criteria are still required to perform in person physical examination before August 30, 2023, to be in compliance.

Additional guidance as to this new option can be found in the proposed final rule here. Compliance with DHS requirements can always be tricky. However, Stradling attorneys are always ready to help employers navigating those issues.