I explained in a column published in June how the flexibility measures enacted during the COVID-19 pandemic related to the inspection of identity and work eligibility documents were scheduled to end July 31.

The U.S. Department of Homeland Security (DHS) required employers to physically inspect identity and work eligibility documents used to support an I-9 form completed remotely during the pandemic by Aug. 30, 2023. But DHS commented that a new final rule was imminent that could make alternative methods of I-9 document inspection permanent. The new DHS rule took effect on Aug. 1, 2023. Unfortunately, the rule might not be the panacea some employers, particularly those with remote employees, hoped it would be.

The new rule allows employers in good standing with E-Verify to electronically review documents used to support Form I-9. Any E-Verify employer that conducts remote document inspection must follow the following “alternative procedure.”

Examine copies — front and back, if the document is two-sided — of Form I–9 documents or an acceptable receipt to ensure the documentation presented reasonably appears to be genuine.

Conduct a live video interaction with the individual presenting the documents to ensure 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 per the first step and then present the same documents during the live video interaction. 

Indicate on Form I–9 by completing the corresponding box 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.

 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.

As I discussed in my column, employers have until Aug. 30 to physically inspect any documents that were inspected remotely during the COVID-19 pandemic flexibility measures.

But some E-Verify employers don’t need to physically inspect documents that were examined remotely under the flexibility measures. An E-Verify employer may be relieved of the requirement to physically reinspect documents if the employer was enrolled in E-Verify in good standing at the time they performed a remote examination of an employee’s Form I–9 documentation for Section 2 or re-verification; used E-Verify to create a case for that employee (except for re-verification) at the time; and followed the first two steps at the time the form was completed between March 20, 2020 and July 31, 2023.

But there’s a catch. The new rule requires all E-Verify employers using the alternative procedure to follow the steps listed above. If, for example, an E-Verify employer wishes to avoid physically reinspecting documents remotely inspected between March 20, 2020, and July 31, 2023, it must still conduct a video interaction and copy any documents used to support Form I-9 if the employer didn’t do so at the time the remote inspection was conducted. Except for remote employees in remote locations, this might be no easier for the employer than physically inspecting documents before the Aug. 30 deadline.

Outside of these two areas of relief for E-Verify employers, all employers who didn’t physically inspect I-9 supporting documents during the COVID-19 pandemic must physically reinspect the documents originally submitted electronically when the I-9 was completed. Unless an employer registers for and uses E-Verify, employers must physically inspect all documents used to support Form I-9 moving forward

The new rule is disappointing to many employers that hoped for DHS to authorize broad remote document inspection. But DHS observed in its rule: Physically examining identity and employment authorization documents offers important security benefits to enable employers to assess if the documents reasonably appear to be genuine and relate to the individual who presents them. Employers who physically examine documents can touch and more clearly see identification security features like holograms and microprinting as well as the card stock on which certain documents are printed.

DHS is likely to authorize broader remote I-9 document inspection in the future. DHS considers the alternative procedures available to employers using E-Verify as a pilot program with the goal of reducing unnecessary burdens and ensuring the security of any alternative procedures relative to physical document examination.

The Employers Council makes available to its member resources on I-9s and other hiring practices. Employers Council attorneys can advise enterprise and consulting members on questions related to I-9s and E-Verify.