I-9 Remote Document Verification Has Ended – Employers Have Until August 30, 2023, to Verify Documents in Person or Under the New Optional Alternative 1 (OA1) Procedure
The temporary I-9 Covid accommodation allowing employers to verify documents remotely ended on July 31, 2023. Employers must now either conduct in-person verification of original documents by August 30 (not 31) for employees previously verified remotely, or (if they qualify), verify documents under a new process called Optional Alternative 1 (“OA1”).
Employers Who Qualify for OA1 Verification:
Employers who qualify for OA1 verification include are those that:
- Were enrolled in E-Verify at the time they performed a remote examination of the I-9 verification documents under the Covid-19 accommodations;
- Continue to be enrolled and in good standing in E-Verify;
- Created an E-Verify case for the specific employee (except if documents are being reviewed solely for reverification); and
- Performed the remote inspection between March 20, 2020, and July 31, 2023.
Employers that do not meet the above criteria cannot enroll in E-Verify now for the purpose of using the alternative OA1 procedure to update I-9s completed under the Covid accommodations.
Steps Required for the New Procedure:
Under the new procedure, a qualified employer or designated representative must:
- Obtain and retain copies of the front and back of the employment documents presented by the employee from the list of acceptable documents for I-9 purposes. This can be done via email, fax, etc.,
- After the employee sends a clear copy of the document(s), conduct a live video interaction during which the employee shows the original documents,
- Annotate the I-9 to state the inspection was done under OA1. In the “Additional Information” block in Section 2 (or in Section 3 if reverification), the employer can write “Alternative Procedure” and the date of the live video interaction, and
- Retain copies of the documents with the I-9 and present them to DHS in the event of an audit.
All of these four steps are required.
Employers Cannot Use the new Alternative Procedure at Locations Where they do not already E-Verify.
If an employer is enrolled in E-Verify at some hiring sites but not others, the OA1 Procedure may only be used at sites that are enrolled in E-Verify.
Employers Cannot Use the OA1 Procedure Selectively.
Employers do not have to use the OA1 Procedure, but if they choose to do so, they must use it either for all employees at that hiring site or all remote employees at that hiring state. Work with your I-9 attorney to draft a policy and easy-to-follow instructions.
An Employee May Choose to Use In-Person Document Verification
If an employee expressly does not want to use the alternative procedure but requests in-person inspection of original documents, the employer must comply with that request.
An Employer Who Already Began the Process of In-person Verification May Switch to the New Optional Remote Procedure.
Employers who began the process of in-person inspection to update the I-9s previously completed under the Covid accommodations may switch to the alternative procedure effective August 1 for any remaining I-9s that need the updated inspection. However, employers may not require in-person inspection of some employees and not of others in a way that is discriminatory.
Additional OA1 Details
As is common with changes in procedure or policy, there are many details and clarifications regarding the OA1Procedure. For example, ICE recommends completing a new Section 2 if someone other than the person who initially did the inspection inspects the physical documents, so that they are signing under penalty of perjury.
Additional issues include situations in which:
- An employee presents a different document than the one originally presented under the Covid accommodations;
- A document presented at time of initial inspection that was valid has expired prior to the re-inspection in connection with the end of the Covid accommodations;
- An employee’s status has changed since the original document presentation;
- An employee will be working remotely and not returning to the worksite.
Because of the intricacies associated with compliance, working with an experienced I-9 attorney can be helpful.
NEW I-9 FORM
A new Form I-9 is available and may be used effective August 1, 2023. The new form must be used effective November 1, 2023 by all employers not just those following the new remote verification procedure. After October 31, 2023, the Form I-9 version dated October 19, 2019 may no longer be used.
BACKGROUND
As part of the now expired Covid-19 accommodations, employers with no staff in the office as a result of Covid were allowed, temporarily, to verify copies or scans of employment eligibility documents remotely, rather than conducting the required in-person verification of original documents. The I-9 was to be annotated, and the original documents were to be verified in person within three days of staff returning to the workplace.
GOING FORWARD
There is no change to the requirements for I-9 Section 1 except for the new I-9 Form noted above. I-9 Forms must still be completed by employees on or before the first day of employment, and employers must still complete Section 2 within three days of the employee’s start date.
Employers who qualify per the above, however, may continue to do remote inspections of documents, provided the proper annotations are made and procedures followed.