COVID cleanup: Re-inspection of Form I-9 documents

Key changes after the July 25th DHS announcement

Updated July 31st, 2023, and inclusive of the Federal Registrar announcement on July 25th

Hope you have a good chiropractor, because HR teams around the country are rubbing their sore necks after another whiplash-worthy announcement from ICE & DHS on July 25th.

In case you’ve been hiding under a large paper I-9, here’s a quick recap:  

The I-9 was created to verify the identity of employees and that they are authorized to work in the United States. Since Form I-9’s creation, employers have been required to view employee’s eligibility documents in person. With the social distancing required by COVID-19, USCIS temporarily allowed employers to view their employees’ identity and work authorization documents virtually. Many employees utilized this flexibility, viewing passports on Zoom and enjoying the convenience of an effectively virtual I-9. 

Back to that whiplash DHS announcement: the era of no-strings-attached virtual review ended on July 31st and the DHS made three big announcements about what happens next. 

What’s in the DHS July 25th announcement?

• Document Re-inspection: Any employee hired since March of 2020 who had their identity and work authorization documents inspected virtually needs a documented re-inspection by August 30th, 2023. 
• New 2023 Form I-9: A streamlined, one-page I-9 launches August 1st. See What Changed.
• Alternative I-9 Process: A more strictly regulated version of virtual document review becomes available to employers on August 1st, 2023 for those committed to running all employees for a hiring site through E-Verify. We’ll address this as it relates to re-inspection in this guide, but refer to our Alternative Procedure Guide for a thorough explanation of how this works.

What is I-9 re-inspection?

All I-9 documents you viewed virtually during COVID…unfortunately, need to be “re-inspected” as a compliance measure required by DHS. Before you ask, under the new guidelines, this even includes those that you virtually reviewed and ran through E-Verify. These re-inspections are due August 30th, 2023. 

We know this will be a huge pain, so this guide is intended to help you understand the process so you can get over this one-time compliance hurdle as soon as possible.  

I-9 re-inspection process

The basics of re-inspection are as follows:

• Identify employees requiring re-inspection
• Understand your re-inspection options
• Complete and document your re-inspection meetings 

Once these three steps have been completed, I-9s that utilized virtual inspection will become compliant with USCIS guidelines and can be stored securely. 

Step one: Who needs re-inspection?

“Has someone physically reviewed this employee’s documents, in person?” is the simple question that will help you figure out who needs a re-inspection. And by in-person, we mean you could reach over and give them a very real, hand-to-hand-contact high five. No video meetings, teleconferences, VR experiences, or metaverse meetups count. 

Any current employee that has not had their work authorization documents viewed during an in-person, physical meeting requires re-inspection. 

Step Two: What are your re-inspection options?

There are two options for re-inspection, though there are restrictions around #2. 

1. Documented physical inspection: Employee physically meets with someone who reviews their identity and work authorization documents and records the inspection on the original I-9. This could be an Authorized Representative or Company Rep.
2. Alternative procedure: Employees that were originally verified with E-Verify during the March 2020 through July 31, 2023 period can be re-inspected using a new “Alternative Procedure” which is the new permanent process for virtually reviewing I-9 documents. Please note that the employer must be enrolled in E-Verify and in good standing.

To qualify for the alternative procedure, the employer must have:  

1. performed remote examination of an employee’s documents between March 20, 2020, and July 31, 2023; 
2. been enrolled in E-Verify at the time they completed the Form I-9 for that employee;  
3. created a case in E-Verify for that employee (except for reverification); and  
4. be currently enrolled in and continue to participate in E-Verify. 

Step three: Completing re-inspection

For each employee identified in Step One, you must complete one of the following re-inspection methods by August 30th, 2023. 

Option one: Documented physical inspection

This is the ONLY option for any employee that wasn’t submitted to E-Verify when they were hired. 

1. Employee meets with a company representative or authorized representative
2. Employee physically presents documents (may be the same documents presented when the Form I-9 was initially completed or new documents)
3. Third-party verifies documents appear genuine and related to the employee
4. Third-party records the date of the physical inspection in the Additional Information field in Section 2 of employee’s I-9. Note: the date that the original virtual review was complete should have been noted by the initial reviewer in the Additional Notes section. 

Detailed instructions, including compliant notation available in our I-9 Physical Re-Inspection Guide

Option two: I-9 Alternative Procedure

This option requires an employee to have been verified at the time of hire through E-Verify, as well as the employer to be in good standing with E-Verify (see FAQ for more information on “good standing”). 

1. Employee electronically submits copies of work authorization document(s) to the employer in advance of a video review/meeting
2. Employee and employer meet via video conference 
3. Employer verifies documents appear genuine and related to the employee
4. Employer records the date of meeting in the Additional Information Field of Section 2 of employee’s Form I-9. If using new Form I-9 (released August 1, 2023), employer also ticks the corresponding “Alternative Procedure” box. 
5. Employer securely stores and retains a copy of identity and work authorization document(s) with the Form I-9 in the event of an audit

After completing one of the options above, that I-9 will adhere to USCIS re-inspection guidelines and can be safely archived.

Alternative Procedure considerations

While it’s exciting to see the government acknowledge realities of remote hiring, there are a few things you should consider before you choose Alternative Procedure as your go-to for Section 2. 

All-in on E-Verify & Alternative Procedure: Once you start using Alternative Procedure, you’re required to use it for 100% of employees at each hiring site. And once you start using E-Verify, you’re required to use it for every employee in perpetuity. Please note that, as long as an employer is consistent, in-person review may be the process conducted for employees physically working at the worksite and Alternative Procedure may be the process for remote employees. However, note that if an employee refuses to participate in the Alternative Procedure and wants to complete the I-9 process in-person, the employer is required to provide that option to the employee. 

Am I in “Good Standing”? We’re cautious when it takes multiple paragraphs to explain two words. The government has a hefty explainer on “good standing” but your organization will have to decide its comfort with the definition and its uncertainty. In matters of compliance, usually the well-traveled path (i.e. continue physical review) is least risky. 

Security risks: You’ll need to collect and retain sensitive documents but email or Google Drive don’t meet security best-practices for employee PII. You’ll likely need to invest in new tools or systems to meet this requirement without creating additional vulnerabilities. 

Additional resources: 

There’s a lot more happening in the world of I-9 than we can fit in one article. Here are a few immediate resources for the journey ahead.

Physical re-inspection guide: If you choose to physically re-examine I-9 documents, we’ve got a handy guide with scenarios, tips, and notation. Get the re-inspection guide here.

WorkBright remote re-inspection: If your employees are scattered across the country, WorkBright offers a compliant remote re-inspection service to help you complete this process with ease. Shoot us a note at sales@workbright.com to get started. 

WorkBright Smart I-9: If you’re wary of Alternative Procedure but need to continue remote hiring, WorkBright’s Smart I-9 offers the convenience of virtual review with the compliance of a documented physical inspection. Learn about Smart I-9. 

FAQ

Q: Do I need to re-inspect employees that were terminated or are no longer with the organization?

A: It is not required by USCIS, though for audit purposes and based on USCIS FAQs, it would be beneficial to make a note in the Additional Information section that re-inspection was not completed on that employee because they were terminated before the re-inspection deadline. 

Q: If we used E-Verify for employees that had documents virtually inspected, do we still need to complete re-verification?

A: Yes, ALL employees who have not had their form i 9 acceptable documents physically inspected need a re-inspection. You have the option to complete the Alternative Procedure instead of a physical inspection, but your I-9s are not compliant until you have completed one of the processes outlined in Step Three of this document.  

Q: I used an authorized representative to view employee documents when they were hired. Do I need to complete re-inspection?

A: No, your previous physical inspection by an authorized representative means no additional action is required.

Q: What do I do if my employee presents expired documents during their re-inspection?

A: This is compliant as long as the documents presented are those that were provided by the employee at the time of initial hire and were valid and not expired at the date of the original review. 

Q: We are a fully remote organization that did not use E-Verify. How are we supposed to physically review our employees’ documents? 

A: If you can’t get your employee and a third party in the same location for physical re-inspection of i 9 form documents, you may have the employee complete a new Form I-9. That new Form I-9 will need to be signed by an authorized representative on your behalf. This could be anyone that they have access to, including a friend or family member. Alternatively, WorkBright is happy to help you facilitate a compliant virtual re-inspection of all your employees.

Q: What if we did not notate when the I-9 was completed remotely, can we go back and add those notes in the additional info box?

A: Yes, we would recommend you put the date of the original virtual inspection (or your best approximation) into the Additional Information section as a first step. Then ensure you have also clearly documented the date of the physical inspection or Alternative Procedure review.

Q: What if I can’t finish all my reverifications by the August 31st deadline?

A: The DHS Announcement states: 

If an employer is otherwise compliant with the law and regulation – and 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.  

There is not a form I-9 covid extension, so we would recommend getting them done as soon as possible and having a compliant hiring system in place by August 1st to show good faith effort of compliance.

Q: What does it mean to be in “Good Standing” with E-Verify?

Per the DHS: A participant in good standing in E-Verify is an employer that has enrolled in E-Verify with respect to all hiring sites in the United States that use the alternative procedure; is in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and continues to be a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure. 

Q: Can we use the Alternative Procedure for only some of our employees?

Per the DHS: If a qualified employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site. However, a qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin.

Q: When is DHS ending covid-19-related temporary form I-9 policies?

The covid I-9 form virtual inspection ended July 31st, 2023 so all employers should now either be using physical document inspection or the virtual alternative procedure if they are an E-Verify employer that meets the requirements noted above.