Effective July 31, 2023, U.S. Immigrations and Customs (ICE) once again required employers to verify all I-9 document submissions in person, ending the remote verification flexibility permitted during the pandemic.  See No More Room For Zoom: I-9 Rules Are Tightening July 31, 2023: Real McCoy Rule (June 16, 2023).  Employers had until August 30, 2023 to physically examine all documents verified remotely during that flexible time period.

There is now an exception to “in person.” ICE’s Final Rule permits an employer in good standing with and using E-Verify — the free online service for verifying new employee immigrant status –to examine I-9 supporting documents an employee transmits, followed by a videoconference in which the employee presents the same documents.  The employer must note the remote verification on the I-9 form and keep copies of both sides of employees’ documents. Employers may continue physical document inspections if they prefer.

If an employer does not participate in E-Verify, by August 30, 2023 it must still physically re-examine all documents accepted remotely during the temporary pandemic rules.  (The Department of Homeland Security has stated it likely will not target employers that, despite acting diligently, are unable to complete their physical examinations by that date.)

The I-9 form has also been modified and can be used as of August 1, 2023.  Employers may continue using the prior version through October 31, 2023.

Take Aways:

Employers should carefully review and comply with all I-9 requirements, always using the current Form I-9 for each new hire.   If an employer has remote employees — and particularly ones who cannot easily come into the place of business – it should register with E-Verify to permit the remote submission and examination of documents for I-9 compliance.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Wavelength Management Workplace Policy Handbook & Forms for 2023 – Grow the Flow (August 15, 2023)
• Personnel Records Policy – Preservation Salvation (April 27, 2023)
• For the Records – Sound Management Practices for Personnel Documentation (August 14, 2020)

Helena Kobrin
August 17, 2023