Employers enrolled in E‑Verify during the COVID‑19 temporary flexibilities may use an alternative procedure to satisfy the requirement of physically examining Form I‑9 documents that had been examined remotely under the COVID‑19 flexibilities.
In May 2023, ICE announced that employers had until August 30, 2023, to physically inspect all documents that had been examined remotely using the COVID‑19 flexibilities.
On July 25, 2023, DHS announced an alternative procedure for Form I‑9 in a Federal Register Notice. Based on the Notice, employers who meet four requirements may choose an alternative procedure in lieu of physically examining Form I‑9 documentation that had been examined remotely under the COVID‑19 flexibilities.
To qualify for the alternative procedure, the employer must have:
- performed remote examination of an employee’s documents between March 20, 2020, and July 31, 2023;
- been enrolled in E‑Verify at the time they completed the Form I‑9 for that employee;
- created a case in E‑Verify for that employee (except for reverification); and
- be currently enrolled in and continue to participate in E‑Verify.
Employers who do not meet all four requirements must perform an in‑person physical examination of documents by August 30, 2023.
All E‑Verify employers that choose the alternative procedure instead of physical examination must follow the instructions for the alternative procedure in this guidance. Even if the employer performed steps similar to the alternative procedure at the time of hire, the employer must still complete the steps of the new alternative procedure to finalize the Form I‑9. Employers may not unlawfully discriminate when using this procedure based on a protected characteristic, such as by deciding that certain employees are not eligible for the alternative procedure.
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If you are an employer who was enrolled in E‑Verify when you performed a remote examination of your employee’s Form I‑9 documentation under the COVID‑19 flexibilities between March 20, 2020, and July 31, 2023, and created an E‑Verify case for that employee...
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You may choose to use the new alternative procedure starting on August 1, 2023 to satisfy the physical document examination requirement by August 30, 2023
Or
You may choose to complete an in-person physical document examination by August 30, 2023.
(If you already conducted an in-person physical examination of documents, no action is needed.)
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If you choose to use the new alternative procedure, you must remotely examine the employee’s Form I-9 documents by conducting a live video interaction for each employee whose documents were examined remotely under the temporary flexibilities but never in-person physically examined.
Note: If you previously used fax, email, or a live video interaction during the COVID-19 flexibilities to examine your employee’s documents, you must conduct a live video interaction by August 30, 2023.
You must annotate Form I-9 with “alternative procedure,” the date of the second remote document examination, and your initials in Section 2, Additional Information field or in Section 3, as appropriate. You should have already annotated the date of the first remote document examination. This new annotation should be placed near the previous annotation .
You must not create another E-Verify case based on the second remote document examination.
See Figure 1 Below.
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Figure 1
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If you are an employer who was not enrolled in E‑Verify when you performed a remote examination of your employee’s Form I‑9 documentation under the COVID‑19 flexibilities between March 20, 2020, and July 31, 2023...
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You must complete an in-person physical document examination by August 30, 2023.
Note that you may use an Authorized Representative to complete the in-person physical document examination.
See Figure 2 below.
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For employers performing in-person physical document examinations following remote examinations completed under the COVID-19 flexibilities between March 20, 2020, and July 31, 2023, the Form I-9 must be annotated with the date the in-person physical document examination took place in Section 2, Additional Information field or in Section 3, as appropriate.
Figure 2
For more information about Temporary Flexibilities under COVID-19, visit I-9 Central.
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