The window has now closed for employers to catch-up on physically inspecting work authorization documentation for individuals who were hired during the pandemic. At the same time, regulations from the Department of Homeland Security (DHS) that took effect August 1, 2023 open a new window for employers to continue with video inspection of work authorization for remote workers – with a catch. Video inspection only applies to those enrolled in the government’s E-Verify program.
How We Got to This Point
All employers are generally required to physically inspect documentation provided by new hires, within the first three days of starting work, that confirms a new employee’s eligibility to work in the United States. Between March 20, 2020 and July 31, 2023, DHS temporarily excused the physical inspection requirement for those employees who did not physically report to a work location on a regular, consistent or predictable basis. Instead, employers were authorized to inspect supporting documentation remotely through video, fax, or email, and retain copies of that documentation. This past summer, DHS warned that the pandemic flexibility was ending as of July 31, 2023, and that employers would need to retroactively conduct physical inspections of documentation previously submitted remotely by new hires during the pandemic flexibility period.
E-Verify Opens a Window for Remote Inspection
Regulations recently issued by DHS offer an exception to the physical inspection requirement for those employers that are enrolled in its E-Verify program. E-Verify is an online process that cross-references records available to the U.S. Department of Homeland Security and the Social Security Administration to verify that a new hire has submitted appropriate documentation reflecting the individual’s eligibility to work in the United States.
E-Verify participants in good standing are permitted to rely on remote inspection, provided it is comprised of the following steps, in sequential order:
- 1. Examination of all submitted documentation (front and back for two-sided documents) to confirm it reasonably appears to be genuine;
- 2. A live video interaction with the individual presenting the documentation to additionally ensure that it aligns to the individual (and there are no impostors or forgeries);
- 3. Indication on the form I-9 that an “alternative procedure” was used to examine documentation; and
- 4. Retention of all the documentation submitted, in a place where it can be available for future inspection in the event of an audit.
Clean-Up Required for Those Hired During the Pandemic
For those hired during the pandemic flexibility period, employers that already were enrolled in E-Verify have been permitted to utilize the new remote video verification process to confirm work authorization. To do so, employers need to go back to the case previously created for that new hire in E-Verify and note “alternative procedure” with the date of the live video interaction in the “additional information” field on the Form I-9 or in Section 3. Employers that are newer to E-Verify and were not enrolled for the entire pandemic flexibility period are expected to have gone back and conducted physical inspections of documentation for those hired prior to the employer’s enrollment in E-Verify.
August 30, 2023 was the deadline for all employers to complete this reverification process. Employers that were otherwise occupied and have not yet completed this process should expedite procedures to bring their records into compliance.
By Tracey I. Levy