DHS Establishes New Rule Enabling Remote Inspection of Form I-9 Documentation

Martin D. Kappenman

Martin is a Shareholder at Peters & Kappenman, a firm representing employers in a full range of employment law issues and litigation in Minneapolis, Minnesota.

DHS has issued a new final rule, coming into effect on August 1, 2023. This rule provides employers with a remote method for inspecting Form I-9 documentation. In the past, in-person inspection of physical documents has been required. However, the COVID-19 pandemic led to the introduction of a temporary policy enabling the remote inspection of documents for employees working remotely. Under the new rule, this temporary policy has become a permanent option for certain employers.

The remote option will be available to employers who are registered and maintain good standing with E-Verify. Employers joining E-Verify are required to complete a tutorial focusing on fraud awareness and anti-discrimination, which is accessible via E-Verify.

Under the new rule, employers choosing the remote option must do the following within three business days of an employee’s first day of employment:

• Conduct a live video with the employee to inspect copies of Form I-9 documents and ensure that the documents appear reasonably authentic;
• Indicate on the Form I-9 that an alternative procedure was used for document examination; and
• Retain copies of the employee’s documents for their records.

In the case of Form I-9 audits or investigations by federal government agencies, employers are required to make the corresponding copies of Form I-9 documents available.

Eligible employers using E-Verify must apply the remote method consistently to all employees at the same location, without discrimination. However, these employers can choose to use the remote method for employees working remotely and continue physical inspections for those working on-site or in a hybrid arrangement, provided there is no discriminatory intent or practice.

Employers who were not registered with E-Verify when they conducted a remote inspection of employees’ documents under the COVID-19 temporary policy, or choose not to join E-Verify, are required to conduct a physical inspection of employees’ Form I-9 documents by August 30, 2023.

If you have questions regarding the above or any other employment-related concerns, please contact Martin Kappenman at 952.921.4603 or mkappenman@pklaborlaw.com, or any other attorney at Peters & Kappenman