DHS revised its I-9 regulations effective August 1, 2023, to create a framework that allows the Secretary of Homeland Security to authorize alternative I-9 document examination procedures. See 88 FR 47990 (July 25, 2023), Optional Alternatives to the Physical Document Examination Associated with Employment Eligibility Verification, which added new section 8 CFR 274a.2(b)(1)(ix).
The new regulatory framework requires DHS to specifically authorize any alternative procedures through publication of notices in Federal Register notice.
"Optional Alternative 1," published at published at 88 FR 47749 (July 25, 2023), Optional Alternative 1 to the Physical Document Examination Associated with Employment Eligibility Verification, is the first such alternative procedure authorized by DHS.
Under normal I-9 rules, an employer must "physically examine" the documents an employee presents to establish identity and employment authorization. Generally, the employer or employer's authorized representative examines these documents in the physical presence of the employee presenting them. Under Optional Alternative 1, effective for hires made on and after August 1, 2023, an E-Verify employer in good standing may choose to examine I-9 identity and employment authorization documents remotely if certain conditions are met. Optional Alternative 1 is only available to E-Verify employers in good standing. 88 FR 47749 (July 25, 2023) confirms that, "Use of this alternative procedure is entirely optional. Nothing in the alternative procedure prevents qualified employers from physically examining documents for the Form I–9."
Employers not participating in E-Verify must always "physically examine" these documents.
88 FR 47749 (July 25, 2023) defines a "participant in good standing in E-Verify" as:
"A participant in good standing in E-Verify in this context refers to an employer that has enrolled in E-Verify with respect to all hiring sites in the United States that use the alternative procedure; is in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and continues to be enrolled and a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure."
The Optional Alternative 1 notice also responds to the question, "May a qualified employer offer the alternative procedure to only some employees?", stating:
"A qualified employer does not need to use the alternative procedure, but if a qualified employer chooses to offer the alternative procedure to some employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site. However, a qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic."
88 FR 47749 (July 25, 2023) provides the following description of Alternative Procedure 1:
IV. Description of Alternative Procedure
A. What does the alternative procedure entail?
Within three business days of an employee's first day of employment, a qualified employer (or an authorized representative acting on such an employer's behalf, such as a third-party vendor) who chooses to use the alternative procedure must:
Examine copies (front and back, if the document is two-sided) of Form I–9 documents or an acceptable receipt [12] to ensure that the documentation presented reasonably appears to be genuine;
Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must first transmit a copy of the document(s) to the employer (per Step 1 above) and then present the same document(s) during the live video interaction;
Indicate on the Form I–9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable;
Retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back if the documentation is two-sided); and
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.
88 FR 47749 (July 25, 2023) also clarifies that qualified employers "must allow employees who are unable or unwilling to submit documentation using the alternative procedure to submit documentation for physical examination. Nothing in the alternative procedure prevents an employer from physically examining documents when requested to do so by an employee."
Ending of COVID-19 remote inspection flexibility
Qualified employers who were enrolled in E-Verify at the time they performed a remote examination of an employee's Form I–9 documentation under the recently ended COVID–19 flexibilities between March 20, 2020 and July 31, 2023 can use the Alternative Procedure 1 to satisfy the required physical examination of the employee's documents for that Form I–9, and should not create a new case in E-Verify.
Employers who were not enrolled in E-Verify at the time they initially performed a remote examination of an employee's documents under COVID–19 flexibilities between March 20, 2020 and July 31, 2023, must physically examine the employee's Form I–9 documents in the employee's physical presence by no later than August 30, 2023.
Required use of Form I-9 with edition date of 08/01/2023
As of August 1, 2023, all employers should begin using a new Form I–9 with an edition date of 08/01/2023 to comply with their employment eligibility verification responsibilities, although employers may continue to use the 10/21/2019 edition of Form I–9 during a grace period ending October 1, 2023. Starting November 1, 2023, the prior version of Form I–9 will no longer be valid for use and all employers must use the 08/01/2023 edition. Employers do not need to complete the 08/01/2023 for current employees who already have a properly completed Form I–9 on file, unless reverification applies.
For employers who use Alternative Procedure 1 starting August 1, 2023:
- During the transition until October 31, 2023, eligible employers using the 10/21/2019 version of Form I–9 for the alternative procedure must write "alternative procedure" in the Additional Information field in Section 2 or in the reverification section as appropriate.
- Eligible employers using the 08/01/2023 edition of Form I–9 for the alternative procedure must complete the corresponding Alternative Procedure box in Section 2 for new hires or the corresponding box in Supplement B, as appropriate.