In the wake of the COVID-19 pandemic, many aspects of our professional lives underwent a significant transformation, including the way employment verification was conducted. One of the notable flexibilities granted during the pandemic was the remote verification of Form I-9, which allowed employers to verify their employees’ eligibility for employment without requiring in-person document inspection. However, as of July 31, 2023, this temporary flexibility has come to an end, ushering in a new era of compliance with revised rules.
This change implies that employers can no longer rely on remote methods for document inspection as a means of verifying employment eligibility. The return to in-person physical document inspection is mandated by August 30, 2023, with certain exceptions applying to E-Verify employers.
What does this mean?
Employers are required to complete in-person physical document inspections for employees whose documents were verified remotely during the temporary flexibility period by August 30, 2023. This obligation extends to employees hired between March 20, 2020, and July 31, 2023. To facilitate this process, employers are allowed to use authorized representatives to complete their portion of Form I-9 on their behalf. Authorized representatives, including managers, notaries, family members or friends, can also perform the in-person inspection. It is essential to note that notarizing Form I-9 is not permissible.
Annotating the I-9 for physical inspection
For employers transitioning from remote to in-person document examination, a crucial step is annotating Form I-9. This annotation must include “COVID-19, Date Physically Examined,” listing the date of the in-person physical document examination with the initials of the person examining the documents; and should be entered in the “Additional Information” field of Section 2 or Section 3, as applicable.
E-Verify employers’ alternative procedure
E-Verify enrolled employers have an alternative procedure available to them. If employers were enrolled in E-Verify during the COVID-19 temporary flexibility period, they can choose to use an alternate method to fulfill the requirement for physically examining Form I-9 documents. This procedure involves conducting a live video interaction to remotely examine the employee’s Form I-9 documents. Employers who had previously used fax, email or live video interactions to verify documents during the flexibility period must now ensure that they conduct a live video interaction by August 30, 2023. You must annotate the I-9 noting alternative procedure with date of physical inspection and initials of the authorized representative.
To utilize the new alternative procedure for E-Verify, employers must meet specific criteria, including:
- Enrollment in E-Verify during the COVID flexibility period.
- Creation of a case in E-Verify for the employee in question.
- Completion of remote document examination between March 20, 2020, and July 31, 2023.
- Current enrollment and continued participation in E-Verify.
Handling unique scenarios
Employers should be aware of various scenarios that might arise during the transition from remote to in-person document inspection:
- If a different person completes the re-inspection of documents, they can fill out a new Section 2 of Form I-9 with “N/A” on Page 1 and attach it to the original Form I-9.
- If different documents are presented during the physical inspection, employers have the option to complete Section 2 on a new Form I-9 and attach it to the original Form I-9 or provide the necessary information in the ‘Additional Information’ field.
- In cases where a document was valid during the remote inspection, but has since expired during the physical inspection, no new document is required as long as it was unexpired during the remote inspection.
Transitioning to the new Form I-9
As of August 1, 2023, employers have access to a new version of Form I-9. The older version, dated “10/19/2019,” may continue to be used until October 31, 2023. Starting November 1, 2023, only the new version dated “08/01/23” will be acceptable for use.
The conclusion of the temporary flexibility for Form I-9 verification represents a significant shift for employers as they return to in-person document inspection. The alternative procedure available to E-Verify employers ensures a smoother transition for those accustomed to remote methods. It’s crucial for employers to be well-informed about these changes and adapt their processes accordingly to remain compliant with the updated regulations.
If you would like to speak to our HR Consulting team regarding how BPM can help, please contact Stacy Litteral.