DHS Provides Employers Certainty and a New Flexible Option for Employment Eligibility Verification

Qualifying E-Verify Participating Employers May Examine Documents Remotely; Form I-9 Streamlined

WASHINGTON – Today, the U.S. Department of Homeland Security (DHS) moved to modernize employment eligibility verification, taking additional steps to provide certainty and flexibility for American businesses. Rather than examining an employee's identity and employment authorization documents in person, employers who participate in E-Verify and are in good standing will have the option to conduct verification electronically and with a live video call interaction. This important update advances DHS’s 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. This new flexible option takes the form of a final rule and Federal Register notice, effective August 1, 2023.

In addition to using E-Verify as a tool for modernizing employment eligibility verification, DHS has authority under this rule to conduct a pilot program that offers the remote examination option to an even broader category of employers. Data from the pilot will inform future consideration of a broader expansion of the remote examination option, which could allow even more businesses to make use of flexible options. More information about this pilot will be available shortly. 

Under this Administration, overall labor force participation has returned to its pre-pandemic forecasted level, with more jobs created in two years than have ever been created in a single four-year term.  Unemployment has remained below 4 percent for 18 months and record numbers of people have applied to start new businesses. Today’s announcement is responsive to requests from American businesses and lawmakers to strengthen accessibility for the growing workforce. 

E-Verify is a free, easy-to-use web-based system operated by DHS in partnership with the Social Security Administration. The system enables participating employers to electronically verify the employment eligibility of their employees. Current regulations for the Form I-9 require that, within three business days after the first day of employment, employers must physically examine the Form I-9 documentation presented by new employees to ensure that the documentation appears to be genuine and related to the individual who presents it.   

This final rule and notice amend those regulations to allow for a remote alternative to the physical examination of Form I-9 documentation, without requiring any employers or employees to use the remote option. Employers may continue to conduct physical examinations. Employers who wish to use the remote procedure may enroll in E-Verify with minimal burdens.

Employers who do not participate in E-Verify have until August 30, 2023, as previously announced, to perform all required physical examination of identity and employment authorization documents for those individuals hired on or after March 20, 2020, and who have received only a virtual or remote examination under the COVID-19 temporary flexibilities. 

Accompanying the rule are several modifications to the Form I-9 to make it easier for employers to use the form. The Form I-9 will be just one page and accessible on tablets and mobile devices. This revised form and condensed instructions streamline the materials and reduce the employer and employee burden associated with the form. Employers can begin using the new edition on August 1, 2023. Employers may continue using the prior edition of Form I-9 through October 31, 2023. 

If an employer is otherwise compliant with the law and regulation – and had followed the COVID-19 flexibility guidance – U.S. Immigration and Customs Enforcement (ICE) will generally not focus its limited enforcement resources on Form I-9 verification violations for failing to complete physical document examination by August 30, 2023, particularly where the employer can show that it has taken timely steps to complete physical document examination within a reasonable period of time.