In an ever-evolving digital landscape, the United States Citizenship and Immigration Services (USCIS) has given employers a new option for verifying employment eligibility. On July 21, 2023, the USCIS announced a final rule, effective August 1, 2023, that allows employers to have an alternative procedure (also referred to as “permanent virtual verification”), whereby qualifying employers may inspect employees’ Form I-9 documentation virtually as opposed to performing a physical verification, which was required for all new hires until the COVID-19 exception was created in March 2020. This innovative approach aims to modernize the process of employment eligibility verification while ensuring compliance with immigration laws.
Since the inception of the Form I-9 in 1986, the process of employment eligibility verification had relied on in-person physical documentation examination. The COVID-19 pandemic brought a temporary option, however, which permitted virtual, remote verification for remote employees. The USCIS previously announced that this option was ending on July 31, 2023. Thus, this new alternative procedure begins the next day, August 1.
This alternative virtual verification procedure is available only to qualified employers. Such employers are:
- In good standing in the E-Verify program;
- Enrolled in E-Verify for all hiring sites in the United States, for which they seek to use the alternative procedure;
- Have complied with all E-Verify requirements, including verifying the employment eligibility of newly hired employees in the United States; and
- Have completed of an E-Verify tutorial/training concerning fraud awareness and anti-discrimination.
To utilize the alternative virtual verification, qualified employers must:
- Examine remotely the front and back of their employees’ identity and employment authorization documentation or acceptable receipt to determine that the documentation reasonably appears genuine;
- Conduct a live interaction with the employee presenting the same documentation discussed above to ensure the documentation reasonably appears to be genuine and relate to the employee;
- 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;
- Retain clear and legible copies (front and back) of all documents presented by employees; and
- In the event of Immigration & Customs Enforcement (ICE) I-9 audit or relevant federal government agency investigation, make available clear and legible copies of documentation presented by the employee for document examination in connection with the employment eligibility verification process.
Qualified employers have the choice to use the alternative permanent virtual verification procedure or not. Additionally, qualified employers may opt to use this procedure for remote employees only, and not for employees who work onsite or in hybrid capacity. Employers may not discriminate in this decision-making process.
If an employer is not currently an E-Verify participant, it may enroll in E-Verify, take the tutorial course as mentioned above, and begin to utilize the alternative virtual verification procedure after August 1, 2023.
An interesting feature of the alternative permanent virtual verification procedure is that employers may use this process in lieu of physical examination of previously virtually verified documentation if they:
- Enrolled in E-Verify at time of remote examination of the employee’s Form I-9 while using the COVID-19 flexibilities,
- Created an E-Verify case for that employee (except for reverification); and
- Performed remote inspection between March 20, 2020 and July 31, 2023.
To facilitate the transition to permanent virtual verification, the USCIS will publish a new one-page version of Form I-9 on August 1, 2023. This new edition of the Form I-9 incorporates the necessary changes to accommodate virtual verification, including the addition of a checkbox that allows employers to indicate remote examination under the alternative procedure. Employers will be able to continue using the current Form I-9 until October 31, 2023, after which the new form becomes mandatory.
The introduction of permanent virtual verification marks a significant milestone in the evolution of employment eligibility verification, which takes in consideration technological advances for a modern workforce. By harnessing the power of technology, employers will be able to verify the identity and employment verification documents in a secure and efficient manner. Permanent virtual verification eliminates geographical barriers, enhances efficiency, and ensures compliance with relevant immigration and employment regulations.
Editor’s Note: This article was written by guest author Bruce Buchanon of the law firm Litler Mendelson, and is published by AGC with permission. Bruce is also a regular presenter at AGC’s Construction HR & Workforce Conference. For more information, contact Claiborne Guy at claiborne.guy@agc.org or 703-837-5382.