DHS posts text of Form I-9 regulation, will allow remote document review in some cases beginning Aug. 1

The Department of Homeland Security posted the text of a much-anticipated Form I-9 regulation Friday, announcing it would give qualifying employers optional alternatives to in-person document review in some cases.

Key Points:

• Beginning Aug. 1, employers who participate and are in “good standing” in E-Verify will have the option of completing Form I-9 document review processes through live video call interaction, after the employee transmits a copy of the document(s) to the employer.
• This option will also be available, starting Aug. 1, to employers completing follow-up Form I-9 document review for employees hired during the COVID-19 pandemic if the employer:
  • Was enrolled in E-Verify at the time the employee was hired.
  • Created an E-Verify case for the employee in question.
  • Performed a remote Form I-9 document inspection for the employee under temporary COVID-19 measures between March 20, 2020 and July 31, 2023.
• Employers have until Aug. 30 to review documents for these employees, as the temporary COVID-19 measures will terminate July 31. Employers that do not meet the above requirements must still physically review documents by Aug. 30.
• The “alternative” program is optional. Employers who prefer to review documents in person may do so, and employers that do not meet the requirements for the new process must still review I-9 documents in person.
• Under the regulation, DHS will have the authority to conduct a pilot program to offer remote examination to a broader category of employers. More information about this pilot is expected soon.
• DHS also announced a new, streamlined version of the Form I-9 that will become mandatory in November.
• The Form I-9 optional alternatives regulation will be published in the Federal Register Tuesday, July 25. A pre-publication version is available here. A notice providing details on the first optional alternative procedure is available here. A notice on the new version of the Form I-9 is available here.

BAL Analysis: In its announcement Friday, DHS said the changes advance DHS’ “mission of safeguarding the integrity of the employment eligibility verification process, while recognizing the realities of the post-COVID economic recovery in which more Americans are working remotely than ever.” The remote verification option is welcome news for employers, especially because it takes effect Aug. 1 and will be available, in some cases, to employers who must complete follow-up document review for employees hired during the pandemic. Employers are encouraged to continue working closely with BAL on Form I-9 compliance matters.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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