On July 21, the Department of Homeland Security issued new I-9 flexibilities that will alleviate the need for employers who use E-Verify to conduct physical I-9 document inspections going forward, and to conduct physical re-inspections of documents examined remotely during the COVID flexibilities by the August 30 deadline. See our earlier alert for more information on the reinspection requirement.

The new rule allows all employers participating in E-Verify to conduct remote inspections of I-9 documents so long as they are also creating an E-Verify case for the employee. Further, for employers who were participating in E-Verify during the pandemic and created an E-Verify case for employees whose documents were examined during COVID-19 flexibilities, they can use the new flexibilities to re-examine the documents remotely (instead of having to do it physically) by the August 30 deadline. The new remote inspection procedure for E-Verify employers requires the following steps:

• Have the employee transmit a copy of the document to the employer (front and back).
• Conduct a live video interaction with the individual presenting the document to ensure the documentation reasonably appears to be genuine and related to the individual.
• Annotate the I-9 by completing the box on the new I-9 stating that an alternative procedure was used, or by noting this in the box in Section 2 of the current form.
• Retain a clear and legible copy of the documentation in a manner consistent with current regulations.

Employers who decide to use the alternative procedure for verifying/reverifying documents should use the same method for all employees, except that it is permissible to distinguish between remote and in-person/hybrid employees by remotely inspecting for fully remote employees and physically inspecting for in-person/hybrid employees. In addition, for any employee for whom remote inspection is the default, the employee can opt-out in favor of physical inspection of their documents.

The new ongoing remote inspection process will be available to E-Verify employers starting August 1. Employers who do not use E-Verify will not be eligible to use the new remote inspection process and instead will need to return to physical examination of I-9 documents.

If you have questions or would like assistance understanding how the new I-9 document inspection requirements apply to your company, please contact us.

• Mary P. Snyder (msnyder@wilsonturnerkosmo.com)
• Katie M. McCray (kmccray@wilsonturnerkosmo.com)
• Emily J. Fox (efox@wilsonturnerkosmo.com)

Wilson Turner Kosmo’s Special Alerts are intended to update our valued clients on significant employment law developments as they occur. This should not be considered legal advice.