U.S. employers use Form I-9 for employment eligibility verification when hiring. That’s why you...
Are You Ready for DHS’ Alternative Procedure for Reviewing Employees’ Acceptable Documents for Form I-9?
A look into an effort spanning decades to obtain the ability for remote review of acceptable documents.
From Cisive’s Form I-9 Expert:
July 21st, 2023 will go down in history as one of the most joyous days in Form I-9 history. On this day U.S. Citizenship and Immigration Services (USCIS) released an afternoon announcement that the new August 1, 2023 version of the Form I-9 would include an option to remotely examine employee’s acceptable documents.
This news was one of the best Form I-9 early Christmas gifts that the U.S. Government has ever bestowed upon U.S. employers, and it was in the making for over a decade. But how did we get here? And more importantly, what can your organization do to make use of this benefit?
Table of Contents:
- Form I-9's Origin Story
- Remote Work’s Impact
- New Technology Available for Remote Review
- How to Use the Alternative Procedure for Remote Review
- Using an Electronic Form I-9 Solution from your Screening Provider
Form I-9's Origin Story
Since the ratification of the Immigration Reform and Control Act (IRCA) of 1986 into law on Nov 6th, 1986, by President Ronald Reagan, all U.S. employers are required to complete a Form I-9 for all new hires.
The purpose of Form I-9 is to verify the identity and employment eligibility of all newly hired employees in the United States and ensure a legal workforce. The IRCA act prohibits employers from knowingly hiring, recruiting, or referring for a fee any individual who is unauthorized to work in the United States.
It is a policy enacted in an effort to deter illegal immigration to the United States and discourage unauthorized employment which is the major draw of illegal immigration.
Then a decade later, the Immigration Reform and Control Act (IRCA) of 1995 and Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 with the latter signed into law on September 30th, 1996, by President Bill Clinton. These two acts led to the creation of the Basic Pilot Program in 1997 which would later become E-Verify in 2003.
The combination of the Form I-9 and E-Verify became a highly effective tool for establishing a legal workforce. The Form I-9 collected the necessary employee and documented information that then can be run in E-Verify to verify if the employee was legally authorized to work in the United States.
What About Remote Work?
As we entered the 21st century, we witnessed an increase in remote hiring in the United States. This led to apparent challenges for U.S. employers that were hiring remote employees.
These remote workers often lived in areas where the employers did not have an office or HR presence.
This made it challenging for employers’ authorized representatives to meet with the remote employees face-to-face and comply with the mandatory physical review of the employee’s acceptable documents and completion of Section 2 within the three-day rule.
Employers Request Remote Review
Many employers began making pleas with the Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services year after year to allow for a remote examination of remote workers as an additional method to review the employee’s acceptable documents.
They stated the current technology at the time had everything necessary to allow for image capture of the documents by smartphone.
While it was clear that the remote document examination process for a new hire was something that was sorely needed to provide relief to U.S. employers and overcome the challenges that remote hiring presented to the overall status quo of physical review requirement of the employee’s acceptable documents, there was concern that we would see an uptick in document fraud.
The overall concern from the government was that image quality of smartphone cameras at the time was not believed to be adequate to capture document details that are key in spotting an authentic document copy. Also, that fraudsters would be able to take advantage of the obscured false image copies to pass as authentic copies.
Local Authorized Agents
While DHS and USCIS pondered on how to provide the alternate remote review option in a manner that would help mitigate document fraud, they did provide some intermediate relief in the form of allowing U.S. employers to enlist the help of a local authorized representative. They also left the criteria of who can serve as an authorized representative fairly open which allowed U.S. employers to create their own criteria that is in line with their company’s standards.
The remote process with the ability to assign a local authorized representative did provide a level of relief to many employers that hired remote employees.
New Technology Enables Remote Review of I-9
All the while, technology improved year over year. The smartphone camera has evolved from having an image resolution of 0.1 mega pixel (early 2000’s) to twelve mega pixels (2020).
The latest smartphone models out now tout a whopping 108 megapixels, enhanced image quality and ability to record in HD (2023).
Also, a plethora of video conferencing applications were released with the ability to support higher video quality sessions.
Remote Hiring Surges Due to COVID-19
As the world was wrapping up the 2019 year, the Coronavirus pandemic would take the world by storm and present a whole new set of challenges to the workplace and the economy as a whole.
Employers who had the option of letting their employees work from home switched to a telework model, and most new hires brought on during the pandemic were remote due to the Social Distancing guidance issued by CDC and OSHA, re-instated by the Federal Government to help slow down the spread of COVID-19.
Temporary Relief
In response to the Social Distancing guidance, DHS and USCIS announced the Temporary Flexibility of Form I-9 Requirements on March 20th, 2020.
The Temporary Flexibility allowed for the temporary remote review of an employee’s acceptable documents with a caveat that a physical re-inspection must be done either when the employer resumes normal business operations (return to office) or until the pandemic is declared over. The COVID-19 pandemic was declared over in 2023.
It was at this point that it was proven the remote review of documents could work with the level of technology that exists today.
It also made it hard to “put the genie back in the bottle” and return to a 100% physical review requirement after three years of using the Temporary Flexibility process.
So just as DHS was preparing to end the Temporary Flexibility on July 31, 2023, the framework had been established on how remote document review could continue with additional requirements and safeguards to mitigate fraudulent documents.
How to Use Alternative Procedure for Remote Review
DHS has provided the following seven requirements that must be adhered to in order to be eligible to use the Alternative Procedure for Remote Review of employee documents:
- Employer must be enrolled in E-Verify at all hiring locations and be in good standing.
- Employer must use the Alternative Procedure consistently in a manner that does not lead to discrimination.
- Any individual to perform the Alternative Procedure must take the Fraudulent Documents Awareness training.
- Employee must provide image copies of their acceptable documents front and back for employer initial review and retention.
- Arrange a live video meeting where the employee presents the same documents previously sent for employer’s virtual review.
- Employer completes Section 2/Supplement B of the Form I-9 and ticks off the check box to indicate the alternative procedure was used.
- Employer uploads document copies for retention along with the Form I-9.
Disclaimer: The above requirements should be reviewed with your internal legal counsel. Your legal counsel may have additional guidance on how to specifically follow these requirements in a manner that is consistent with your company policy.
Cisive Provides Your Electronic Form I-9 Solution
Cisive’s Electronic I-9/E-Verify Solution provides the necessary platform for employers and new employees to complete the Alternative Procedure I-9/E-Verify process in a manner consistent with the required steps designated by DHS. If you have any questions on how you can partner with Cisive for your I-9/E-Verify, Background and Onboarding needs, speak to an expert today!
