Form I-9 Alternative Document Examination Rules

At A Glance

• Employers and employer agents may review employment authorization documents presented in the I-9 process remotely via video. Employees must provide a copy of the document that will be examined via video.
• This option only applies to employers actively enrolled in and in good standing with E-Verify.
• Employers using the alternative procedure must make copies of all documents used for verification.
• Effective August 1, 2023.

On July 25, 2023 the Department of Homeland Security (DHS) posted the final rule in the Federal Register, Optional Alternatives to the Physical Document Examination Associated With Employment Eligibility Verification (Form I-9). The final rule clarifies which employers are eligible to participate in the alternative examination method. This ruling comes after DHS published a proposed rule and request for public comment in the Summer of 2022.

See Compliance Alert: 2023 Form I-9 Updates for further information on the recent I-9 changes.

Who Can Use the Alternative I-9 Document Examination Procedure?

Under the final rule, only qualified employers may use the alternative document examination procedure. DHS defines a qualified employer as:

• Employers enrolled in E-Verify
• Employers participating in E-Verify
• Employers in good standing with E-Verify by complying with the E-Verify MOU

Per the rule, a qualified employer does not need to use the alternative procedure, but if a qualified employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site, without discrimination. 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, i.e., their citizenship, immigration status, or national origin.

What is Alternative Procedure for I-9 Document Examination

Within three business days of an employee's first day of employment, a qualified employer or representative who chooses to use the alternative procedure must:

1. Examine copies (front and back, if the document is two-sided) of Form I–9 employment verification documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine. The employee is responsible for submitting a copy of the documents to the employer.
2. Conduct a live video interaction with the individual presenting the documents to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must present the same documents during the live video interaction that they provided the employer copies of.
   1. How the video interaction (i.e. webcam, cellular video, or conferencing software) takes place is not limited by the regulations, but we recommend that employers and representatives use appropriate discretion for maintaining the privacy of the employee.
3. The employer or representative must indicate on 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. While using the 10/21/2019 version of Form I–9 for the alternative procedure, employers must indicate their use of the alternative procedure by writing “alternative procedure” in the Additional Information field in Section 2.
4. Create an E-Verify case for newly hired employees. Please see the E-Verify Employer User Manual for further instructions.

Alternative I-9 Procedure Document Retention Requirements

Employers must retain clear and legible copies of all documents presented by the employee seeking to establish identity and employment eligibility for the Form I–9 through the alternate procedures.

In the event of a Form I–9 audit or investigation by a relevant federal government official, the employer must provide 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.

E-Verify enrollees who do not use the alternative procedure and only physically examine identity and work authorization documentation for Form I–9 would only be held to the existing requirements for E-Verify participants to retain copies of U.S. passports and passport cards, Permanent Resident Cards, and EADs.

COVID-19 Flexibilities Ending

Employers are still required to complete the physical examination of employment verification documents that were remotely reviewed under the COVID-19 flexibilities permitted between March 20, 2020, and July 31, 2023. However, those employers that were enrolled in E-Verify and created cases for individuals they remotely reviewed documentation for may use the alternative video verification method.

Employers who were not enrolled in E-Verify at the time they initially performed a remote examination of an employee's documents (i.e., within three business days of the employee's first day of employment) under the COVID–19 flexibilities between March 20, 2020 and July 31, 2023, are required to physically examine the employee's Form I–9 documents in the employee's physical presence.

All employers who utilized the remote examination flexibilities are still required to update the Form I-9 with the in-person verification date or alternative method verification date by August 30, 2023.

Next Steps

Employers who would like to participate in remote verification going forward will need to register with E-Verify, if not already registered. Once registered, employers will need to complete training. The agency has not yet provided a sample of the updated training but has noted in the regulations that it will be updated.

Once enrolled in E-Verify, employers will be required to create a case for all newly hired employees, whether or not the alternative procedure is used, at each hiring site that is enrolled in E-Verify, in accordance with the E-Verify Memorandum of Understanding.

Thank you for choosing Paylocity as your Payroll Tax and HCM partner. This information is provided as a courtesy, may change and is not intended as legal or tax guidance. Employers with questions or concerns outside the scope of a Payroll Service Provider are encouraged to seek the advice of a qualified CPA, Tax Attorney or Advisor.