Alternative Procedure for Form I-9 Verification: Answers to FAQs

You must have heard that the U.S. Immigration and Customs Enforcement (US ICE) recently introduced an optional alternative procedure to the physical document examination associated with Form I-9, Employment Eligibility Verification.

This blog discusses the Alternative Procedure for Form I-9 Verification, a convenient option allowing qualified employers to remotely examine and authenticate documentation for employee identity and employment authorization.

Q. What is the Form I-9 alternative verification procedure?

The alternative procedure for Form I-9 verification allows qualified employers to remotely examine and verify the authenticity of new employees’ identity and employment authorization documentation. Within three business days of an employee’s first day of employment, qualified employers must follow these steps:

? Examine copies (front and back, if two-sided) of Form I-9 documents or an acceptable receipt to ensure the documentation appears genuine.

? Conduct a live video interaction with the individual presenting the document(s) to ensure they are genuine and related to the employee. The employee must transmit a copy of the document(s) to the employer and present the same document(s) during the live video interaction.

? Indicate on Form I-9, by completing the corresponding box, that the alternative procedure was used for documentation examination.

? Retain clear and legible copies of the documentation for the required period.

? Make these copies available in case of a Form I-9 audit or investigation by a relevant federal government official.

Q. Which employers are qualified to use the alternative procedure?

Currently, only employers who are participants in good standing in E-Verify are qualified to use the alternative procedure. This means they must be enrolled in E-Verify for all hiring sites in the United States that use the alternative process, comply with all E-Verify program requirements, and continue to be enrolled and participate in E-Verify when using the alternative procedure.

Q. Should qualified employers using the alternative procedure use E-Verify to create cases?

Yes, qualified employers using the alternative procedure must still create an E-Verify case for all newly hired employees, regardless of whether the alternative procedure is used or not, at each hiring site enrolled in E-Verify (following the E-Verify Memorandum of Understanding).

Q. Can a qualified employer continue to examine documents physically instead of using the alternative procedure?

Yes, the use of the alternative procedure is optional. Qualified employers may physically examine documents instead of using the alternative procedure if preferred.

Q. Can a qualified employer offer the alternative procedure to only some employees?

While qualified employers are not obligated to use the alternative procedure, if they offer it to some employees at an E-Verify hiring site, they must do so consistently for all employees at that site. However, they can choose to provide the alternative procedure for remote hires only and use physical examination procedures for employees working onsite or in a hybrid capacity, as long as it is not for discriminatory purposes.

Q. Can all employers take advantage of this alternative procedure?

No, only employers who are participants in good standing in E-Verify are eligible to use the alternative procedure.

Q. Are there special Form I-9 reporting requirements associated with the alternative procedure?

Yes, qualified employers must indicate on Form I-9 that the alternative procedure was used for documentation examination or reverification.

Q. Are there additional document retention requirements associated with the alternative procedure?

Yes, qualified employers using the alternative procedure must retain clear and legible copies of the documentation presented by employees seeking to establish identity and employment eligibility. However, this requirement only applies to employees for whom the employer used the alternative procedure.

Q. When does the alternative procedure go into effect?

Qualified employers may use the alternative procedure starting on August 1, 2023. Employers cannot apply the alternative method to employees hired before this date.

Q. How long will the alternative procedure be available?

The alternative procedure does not have an expiration date. However, the Department of Homeland Security (DHS) may amend or cancel it if necessary for security reasons or during public health emergencies or national emergencies.

Q. If the employee does not want the employer to apply the alternative procedure, can qualified employers refuse to perform a physical document examination?

No, qualified employers must allow employees who are unwilling or unable to submit documentation using the alternative procedure to submit documents for physical examination upon request.

Q. What methods of document verification are acceptable?

The qualified employer must examine a copy of each document the employee presents to determine if it reasonably appears genuine. Additionally, the employer must conduct a live video interaction with the employee to verify that the documentation relates to the employee.

Q. Can qualified employers that used COVID-19 temporary flexibilities apply this alternative procedure for Form I-9 documentation that had been examined remotely?

Qualified employers that used the COVID-19 temporary flexibilities for remote examination of Form I-9 documentation can use the alternative procedure if they meet certain conditions. They must have been enrolled in E-Verify at the time of remote examination, created an E-Verify case (except for reverification), and performed the remote inspection between March 20, 2020, and July 31, 2023.

Q. Audits and Evaluating the Alternative Procedure

The Department of Homeland Security (DHS) may conduct audits to assess the impact of the alternative procedure on system integrity compared to physical document examination. DHS may also conduct pilot programs and collect data to ensure the security and efficiency of the alternative procedure.

Q. Till when can I use Form I-9 (Edition: 10/21/2019)?

Employers may continue using the prior version of Form I-9 (Edition: 10/21/2019) through October 31, 2023, but they must indicate the use of the alternative procedure by writing “alternative procedure” in the Additional Information field in Section 2. After October 31, 2023, employers must use the new Form I-9 (Edition: 08/01/2023) and indicate the use of the alternative procedure as appropriate.

Q. How can I Obtain Form I-9 (Edition: 08/01/2023)?

Employers can download the new Form I-9 (Edition: 08/01/2023) from the USCIS website or order paper forms by mail. They can contact the USCIS Contact Center or visit USCIS’ I-9 Central webpage for more information.