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Amidst the turmoil and adjustments of the COVID-19 pandemic, many employers have had to modify their usual procedures for verifying the employment eligibility of new hires. With temporary flexibilities in place for the remote examination of Form I-9 documents, changes were inevitable. As we find ourselves in 2023, there are crucial updates and changes in these policies that employers need to be aware of.
The Initial Temporary Flexibility
During the pandemic, employers were allowed the flexibility to remotely examine an employee’s Form I-9 documents, a procedure typically done in person. This was especially beneficial for employers and employees who transitioned to a remote working arrangement to curb the spread of the virus. In May 2023, Immigration and Customs Enforcement (ICE) declared that employers had a deadline of August 30, 2023, to physically inspect all documents that were initially examined remotely due to the COVID-19 allowances.
DHS’s Alternative Procedure:
Prior to ICE’s announcement, the Department of Homeland Security (DHS) introduced an alternative to the physical examination process on July 25, 2023. According to a Federal Register Notice, employers can opt for this alternative procedure instead of a physical inspection and extends to all I-9s moving forward regardless of the Covid-19 allowance, provided they meet four requirements.
- Timeframe of Remote Examination: For existing I-9s, the employee’s documents must have been remotely examined between March 20, 2020, and July 31, 2023. For I-9s after July 31, 2023, employers who use E-Verify can do the alternative examination going forward.
- E-Verify Enrollment at the Time: The employer should have been registered with E-Verify at the time they filled out the Form I-9 for the respective employee.
- E-Verify Case Creation: A case in E-Verify must have been established for the employee, except during reverification.
- Continuous E-Verify Participation: The employer should be currently enrolled in and persistently engaged in E-Verify.
For employers who don’t meet these criteria, the traditional in-person physical examination of documents is mandated by the August 30 deadline. More information can be found here.
What Employers Need to Know
Employers qualified for the alternative procedure can opt to:
- Utilize the alternative procedure from August 1, 2023, thereby satisfying the physical document examination requisite by August 30.
- Go ahead with the standard in-person physical document inspection by August 30, 2023.
For those already done with an in-person review, there’s no further action required.
Note: If, during the COVID-19 flexibilities, fax, email, or live video was utilized for examination, a live video interaction is a must by the end of August.
Annotations are also critical. Employers must tag Form I-9 with “alternative procedure”, state the date of the secondary remote document assessment, and inscribe their initials either in Section 2 (Additional Information field) or Section 3. Remember, there should be an annotation marking the date of the primary remote document inspection. The new marking should be adjacent to this earlier annotation.
Crucially, there should be no creation of an additional E-Verify case based on this second remote examination.
While these procedures offer flexibility, employers should practice them without any discriminatory actions. All employees, regardless of their protected characteristics, should be given equal opportunities and treatments.
These updates and changes are essential for employers to ensure they remain compliant while also enjoying the benefits of flexibility introduced due to the pandemic. It’s vital to stay informed and up-to-date to maintain the integrity of employment verification processes and adhere to federal mandates. DISA’s background compliance team can help you design and sustain a background screening package tailored to your company’s requirements, including I-9/E-Verify services.
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