The United States Department of Homeland Security (“DHS”) has issued a final rule that will permit certain employers to remotely verify I-9 employment authorization documents on a permanent basis beginning August 1, 2023.

Historically, employers, or their “authorized representatives,” were required to review I-9 authorization documents in-person with the employee physically present. However, during the COVID-19 pandemic, DHS temporarily permitted employers operating remotely to engage in remote examination of documents, which flexibility is scheduled to end on July 31, 2023.

Under the new rule, to make use of remote authorization (which the rule refers to as the “alternative procedure”), employers must:

  • Be enrolled, and participate in good standing in E-Verify;
  • Use remote authorization for all employees at a site, or for all remote employees (but not for in-person or hybrid employees) so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic;
  • Retain copies of all the documents presented by the employee to establish their identity during the alternative procedures; and
  • Complete required E-Verify trainings on fraud awareness and anti-discrimination.

Further, the rule states that within three (3) business days of an employee’s first day of employment, an employer using the alternative procedure must:

  • Examine copies of Form I-9 documents or an acceptable receipt 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 documents to the employer and then present the same documents during the live video interaction;
  • Indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine the documentation to complete the form, or for reverification, as applicable;
  • Retain, consistent with applicable regulations, a clear and legible copy of the documentation; 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.

The new rule will apply on a prospective basis to employees hired after the option takes effect on August 1.  A new edition of Form I-9 also will be made available beginning on August 1 for use beginning on that date.

Employers who used remote document examination procedures under the flexibilities provided due to the COVID-19 pandemic and are now subject to the requirement to conduct in-person physical examinations of such documents by August 30, 2023 may use the alternative procedure to satisfy this re-examination requirement, provided that they:

  • Were enrolled in E-Verify at the time of the remote examination while using COVID flexibilities;
  • Created an E-Verify case for the employee (except for reverification, for which no E-Verify case needs to be opened), and;
  • Performed the remote inspection between March 20, 2020 and July 31, 2023.

Employers making use of this accommodation under the final rule must also add “alternative procedure” with the date of the live video interaction (discussed above) to the employee’s I-9 form. As noted above, the accommodation does not apply to employers who were not enrolled in E-Verify – or did not create an E-Verify case for the employee(s) in question if required – at the time the remote verification was initially conducted.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Jurate Schwartz Jurate Schwartz

Jurate Schwartz is a senior counsel in the Labor & Employment Law Department. She devotes her practice to counseling clients in employment matters, as well as representing employers in federal and state litigations, arbitrations and administrative proceedings.

Jurate’s practice includes providing advice on…

Jurate Schwartz is a senior counsel in the Labor & Employment Law Department. She devotes her practice to counseling clients in employment matters, as well as representing employers in federal and state litigations, arbitrations and administrative proceedings.

Jurate’s practice includes providing advice on compliance with various laws affecting the workplace, including the FMLA, ADEA, Title VII, ADA, FLSA and similar state and local laws. She counsels clients on developing, implementing and enforcing personnel policies and procedures and reviewing and revising multi-state employee handbooks under federal, state and local laws. Jurate also advises clients on policy and training issues, including discrimination, harassment, retaliation, wage and hour, employee classification, accomodation of religious beliefs, pregnancy and disability, and leaves of absence, including vacation and paid time off policies, multi-state paid sick and safe leave laws and paid family and medical leave laws. Jurate is experienced in conducting wage-and-hour audits under federal and state wage-hour laws and advising clients on classification issues. She also assists clients in drafting employment, independent contractor, consulting and separation agreements as well as various restrictive covenants.

In addition to counseling, Jurate litigates employment disputes of all types, including claims of employment discrimination, harassment, retaliation, whistleblowing, breach of contract, employment-related torts and claims under federal and state wage-and-hour laws. Jurate also assists clients in matters involving trade secrets and non-competes, as well as nonsolicitation, nondisclosure agreements and other restrictive covenants.

Jurate has been ranked by Chambers USA in Florida since 2012. One client comments, “I am a client with extremely high expectations and Proskauer never ceases to exceed them. Jurate has a perfectionist personality and that fits well with how we operate.”

Jurate’s pro bono work includes service on the HR committee of a not-for-profit organization, the YMCA of South Palm Beach County, Florida, and assisting other not-for-profit organizations with employment matters, as well as her successful representation of an unaccompanied immigrant child in an asylum proceeding referred by the National Center for Refugee & Immigrant Children.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.

Photo of Theresa Madonna Theresa Madonna

Theresa Madonna is an associate in the Labor & Employment Law Department and a member of the Employment Litigation-Discrimination, Harassment & Title VII Practice Group and the Employment Counseling and Training Group.

During her time at Proskauer, Theresa has focused on a wide…

Theresa Madonna is an associate in the Labor & Employment Law Department and a member of the Employment Litigation-Discrimination, Harassment & Title VII Practice Group and the Employment Counseling and Training Group.

During her time at Proskauer, Theresa has focused on a wide range of employment matters, including employment discrimination litigation and client-counseling. She has assisted in representing employers in litigation and investigations related to claims of workplace harassment, discrimination, retaliation and wrongful discharge. In addition to her litigation practice, Theresa counsels clients regarding employee policies, handbooks, offer-letters and noncompetition and independent contractor agreements. She has gained experience across a wide variety of industries including health care institutions, education, real estate, media and entertainment, financial services and sports. As part of her pro bono practice, Theresa represents individuals in immigration matters and provides employment counseling to non-profit organizations.

Theresa earned her J.D. summa cum laude from Boston University School of Law, where she was a member of the Boston University Law Review and a Legal Research and Writing Fellow. During law school, she was a clinical student attorney and represented clients in employment, housing, and family law matters. Additionally, she interned for the Honorable Juan R. Torruella of the United States Court of Appeals for the First Circuit. Theresa also received Boston University School of Law’s William L. and Lillian Berger Achievement Prize for exemplary scholastic achievement.

Prior to law school, Theresa was an in-house paralegal at a Boston-based technology company.