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With I-9 processes going virtual, what HR needs to know

John Fay
John Fay
John Fay is Director of Product Strategy at Equifax Workforce Solutions.

Much like a boarding pass is essential for travelers to board a plane and reach their intended destination, the Form I-9 serves as an indispensable document for HR professionals hiring new employees in the U.S. It plays a pivotal role in documenting that employees are not only ready to embark on their journey of employment but are also eligible to work, based on the presentation of documents that demonstrate identity and work authorization.

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Just as lacking a boarding pass prevents you from taking a flight, an incomplete or neglected Form I-9 can have repercussions, both for the individual and the employer, leading to potential regulatory consequences.

Form I-9 in the era of remote work

With a substantial 14% of American employees working from home full-time and an additional 35% having jobs that can be performed remotely, as reported by the Pew Research Center, HR leaders must continually adapt their processes to accommodate remote employees.

Form I-9s remain mandatory for all U.S. workers, regardless of work location, which can be particularly challenging given the historically “in-person” nature of the Form I-9 completion and document review processes. Remote employees may need additional guidance and support from HR teams to help prevent potential issues and avoid costly penalties.

New ‘alternative procedure’ virtual I-9 option

The Department of Homeland Security (DHS) announced that as of Aug. 1, qualifying employers now have the ability to remotely examine identity and employment authorization documents presented by their employees for Form I-9 purposes, effectively eliminating the need for in-person document verification.

Employers wishing to take advantage of this new optional alternative procedure must enroll in E-Verify at participating hiring sites, retain copies (front and back) of all I-9 documents presented and conduct a live video interaction with the employee to ensure the document copies reasonably appear to be genuine and relate to the person presenting them.

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This new option can also be used by qualifying employers in performing the required “follow-up” inspections of I-9s completed under the government’s COVID-19 flexibilities. These flexibilities initially allowed employers to defer the traditional in-person document inspections, opting instead for virtual examinations due to COVID-19-related precautions.

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Although the Aug. 30 deadline for follow-up inspections has passed, the DHS has signaled a willingness to consider employers’ good faith efforts when evaluating fines and penalties. As such, employers should diligently endeavor to complete the required follow-ups as promptly as possible, either by conducting a physical inspection or using the new virtual process, if eligible.

Factors for employers with the optional alternative method

When contemplating the adoption of the “optional alternative” program for Form I-9 verification, employers are confronted with a crucial decision that hinges on a careful evaluation of both benefits and costs. The DHS underscores the importance of this assessment, urging employers to consider these factors diligently in alignment with their business needs and regulatory obligations. This evaluation should take into account various elements, including the organization’s size, HR capabilities, workforce distribution and budgetary constraints.

Employers should conduct a comprehensive analysis, examining how the alternative method aligns with their existing infrastructure, the efficiency gains it can provide and whether the investment in technology and training justifiably supports the potential advantages it offers. By carefully assessing these factors, employers can make better-informed decisions that align with their unique circumstances and objectives.

Potential benefits of the optional alternative program

The adoption of the new optional alternative I-9 program offers employers several key advantages. It eliminates the need for HR specialists or employees to travel for in-person document inspections, potentially fostering more remote work opportunities in industries where such arrangements are favorable.

Additionally, the virtual process allows employers to centralize I-9 completion and review within their HR departments, promoting standardization and greater accuracy. For employers new to the E-Verify program, the virtual I-9 process can more seamlessly integrate with it, providing additional resources and eligibility checks to streamline the hiring process and enhance meeting immigration and employment regulations.

Considerations for the optional alternative program

The recent introduction of the optional alternative I-9 program brings a wave of changes that employers must carefully navigate. Embracing this program entails mandatory participation in E-Verify at all hiring sites that utilize the alternative procedure, which brings initial setup complexities and also long-term responsibilities.

Employers need to allocate resources for training on E-Verify rules and procedures, managing potential mismatches and staying abreast of evolving program developments. Additionally, to qualify for this virtual option, employers must maintain “good standing” in the E-Verify program, which means adherence to all its requirements.

Securely handling virtual I-9s also involves meticulous planning to enable employees to upload their identity and work authorization documents while adhering to strict data security and privacy regulations. Equally vital is the retention of these documents alongside the I-9 forms, ensuring they are easily accessible for inspection. By doing so, employers can not only meet legal requirements but also safeguard sensitive employee information, bolstering trust and accuracy in the process.

The introduction of live video document review presents its own set of challenges. Employers need to select an appropriate video platform, ensure employees have access and establish standardized operating procedures for document reviews.

Beyond these logistical aspects, employers must also remain vigilant and prepared for contingencies. Individual employees may choose not to participate in a virtual review, necessitating a backup plan for in-person inspections. These considerations underscore the importance of flexibility and foresight when implementing this option.

The road ahead

The new alternative procedure for examining I-9 documents offers HR a more modernized “boarding process” for the digital age, but also introduces new requirements and processes that are ultimately subject to government inspection. In order to navigate these changes, HR should carefully review the program requirements, explore the pros and cons and assess whether “new virtual” is the right path forward for their organization.