The Department of Homeland Security (DHS) recently announced a new policy allowing employers to complete Form I-9 through an alternative procedure process This process changes the long-standing DHS policy requiring employers to conduct in-person document verification and recognizes that remote work is a fixture in the employment landscape.
Why did DHS change their policy?
Prior to the 2020 COVID-19 pandemic, DHS firmly held to the policy that all documents presented for Form I-9 must be physically examined in-person. When the pandemic began in 2020, DHS announced temporary flexibilities that allowed employers to virtually review documents presented by employees. Three years later, DHS announced on July 31, 2023, the end to the temporary flexibilities and that employers had to conduct in-person inspections of all documents that were previously inspected remotely by August 30, 2023.
With that announcement from DHS, employers requested a permanent rule allowing remote inspection for Form I-9. DHS responded with the alternative procedure process. This new process can be used by employers as of August 1, 2023 for newly hired employees. It is also applicable to any Form I-9 completed under the temporary guidance if the employer, at the time the Form I-9 was completed, was enrolled in E-Verify, created and submitted a case for the employee, and continues to be enrolled in E-Verify.
What is the alternative procedure process?
Be aware that the alternative procedure process is not as simple as reviewing Form I-9 documents remotely. Instead, employers must follow the steps below to meet the requirements:
- Employees send copies of their Form I-9 documents (including acceptable receipts, if applicable) to the employer.
- The employer examines the copies (front and back, if the document is two-sided) to ensure that the documentation presented reasonably appears to be genuine.
- The employer conducts a live video interaction with the employee. During the live video session, the employee must present the same documents that were sent in Step 1.
- The employer indicates on the Form I-9 that an alternative procedure was used to examine documentation.
- The employer retains a clear and legible copy of the documentation (front and back, if the documentation is two-sided).
- If the employer is audited, the employer must make available the copies of the Form I-9 documentation that was retained in Step. 5.
Additional considerations in deciding whether to use the alternative procedure process:
Is your employer eligible to use the alternative procedure process?
Only employers enrolled in E-Verify with good standing for a particular hiring site are allowed to use the alternative procedure process with respect to that site. If an employer has multiple hiring sites but is enrolled in E-Verify in only some of those locations, the employer must continue to conduct in-person verification of Form I-9 documents for those locations in which it is not enrolled in E-Verify.
As part of the alternative procedure process, employers must also ensure that each employee who is using E-Verify is trained. Training is included as part of the E-Verify enrollment process, and users creating and managing cases within E-Verify will be prompted to complete the training.
To which employees do you need to offer the alternative procedure process?
For employers using the alternative procedure process, the employer has two choices; they can offer the process for all newly hired employees at the hiring location, or offer the alternative procedure process to remote employees only while continuing to inspect Form I-9 documents in person for onsite and hybrid employees.
If an employee requests an in-person physical examination of their documents, the employer may grant the employee’s request and examine the documents in-person. As a practice, the employer may want to indicate in their records that the in-person examination of documents was done at the employee’s request.
Employers need to ensure they do not only allow employees of certain citizenship status to provide their documents remotely or else they could violate antidiscrimination laws.
How will UKG help with the alternative procedure process?
To ensure I-9 compliance during remote verification, the UKG Pro® Onboarding solution will be updated with a new Form I-9 that will include a checkbox allowing employers to confirm that the verification was conducted remotely. This entails scheduling a video call using your preferred application with your employee separately, during which time employers will perform the necessary document review. Following this, they will proceed to Section 2 of the Form I-9 and select the "Alternative Procedure" checkbox.
Customers will still be required to retain copies of the documentation they verified during this remote process, and these documents can be uploaded within the I-9 section of the UKG Pro Onboarding solution.
When will the new Form I-9 be available?
We are targeting Thursday, October 26, 2023, as a release date for the new form in the UKG Pro Onboarding solution. The new form will include a checkbox to allow employers to indicate a document was inspected remotely, and we’ll be in touch to confirm once it’s available. For new hires with a start date of November 1, 2023, or later who onboarded before the release of the new form, you’ll need to “Edit New Hire” and reprocess them in the solution after the new form has been released.
Important update to E-Verify Requirements for Florida Employers
Effective July 1, 2023, Florida employers with 25 or more employees are required to use E-Verify to report new hires and must certify compliance with the E-Verify system on the first return each calendar year. Certifying compliance with E-Verify for 2023 can be done after July 1, (if no return for 2023 has been filed between January 1 and June 30) or with the first return filed in 2024.
Certification should occur no later than the last day of the month following the quarter in which the first reemployment tax return or report is due in a calendar year. If you’re an employer who relies on UKG to file your reemployment tax return or report, please note that UKG does not have the legal authority to certify use of E-Verify on your behalf.
Beginning July 1, 2024, if the Department of Commerce determines that a Florida-based employer failed to use the E-Verify system, as required, three times in any 24-month period, they will impose a fine of $1,000 per day until the employer provides sufficient proof that the non-compliance has been satisfied. Non-compliance is grounds for suspension of all licenses issued by a licensing agency. Any penalty-related questions should be directed to the Florida Department of Revenue or the Department of Commerce.
We understand you may still have questions about the information we’ve shared. We’re here to partner with you every step of the way and encourage you to reach out to us in the UKG Community™ Compliance Connection group or the UKG Pro Talent group for any questions about the new process.