I-9 Employment Eligibility Verification Process Navigating Regulatory Compliance in the Age of Remote Document Examination

Often overlooked but carrying considerable liability, the I-9 Employment Eligibility Verification process is a mandatory tool for all U.S. employers, large and small.  This article provides a summary of the law and primary I-9 requirements, recent changes in the I-9 process, and information on penalties and liability exposure in the event of I-9 violations.

What is the I-9 law?

The Immigration and Nationality Act (INA), specifically 8 U.S.C. § 1324a, prohibits employers from knowingly hiring or continuing to employ individuals who are not authorized to work in the U.S.  The law took effect in November 1986 and it was implemented in an attempt to reduce the flow of undocumented immigrants into the U.S., by eliminating access to U.S. jobs.

The law requires employers to establish that they have complied in good faith with certain document examination and attestation requirements for all employees. The code of federal regulations, 8 C.F.R. § 274a.1, defines the term employee as an individual who provides services or labor for an employer for wages or other remuneration. Other remuneration may include free or reduced-cost lodging or meals, or anything of value.

The term employee does not include, and the document verification need not be fulfilled, for the following:

• Domestic workers, if services are sporadic, irregular and intermittent
• Unpaid interns/volunteers unless they receive anything of value in exchange for their services
• Independent contractors and self-employed individuals, except that an employer cannot use the independent contractor classification with the intent to circumvent the verification requirements
  

How do employers comply with the good faith verification requirement?

Federal regulations designate the Form I-9 Employment Eligibility Verification as the mechanism by which employers comply with the good faith examination requirement. The I-9 form has changed several times over the years, and employers are required to use the I-9 form edition that is current as of the time of verification.  Generally, once the U.S. government issues a new Form I-9 edition, the use of prior version(s) is no longer acceptable.

Form I-9 has two primary sections: Section 1 for the employee, and Section 2 for the employer.  Additional sections and/or supplements are available for re-verification during employment, if required, and for certain re-hires.

Federal regulations require the employee to complete Section 1 no later than the 1^st day of employment.  The employer must ensure that the employee complies with this mandatory deadline.  Section 1 may be filled out before the first day on the job, but not before having an accepted job offer.

Federal regulations also require the employer to complete Section 2 no later than the 3^rd day of employment. When completing Section 2, the employer must review and record one item from List A, or a combination of one item from List B and one item from List C.  Combinations of List A + B or List A + C documents are prohibited.

Can employers verify the employee’s I-9 documents virtually?

It depends. The document verification method has seen some changes during the COVID-19 pandemic, and virtual verification is currently available, but it is subject to additional requirements. 

I-9 verification requirements pre-pandemic

Prior to March 2020, the law and federal regulations provided no provision whatsoever for virtual document verification in the I-9 context. Employers had to review original documents, in person, with the new hire in front of them.  However, unless the employer was enrolled in E-Verify, keeping a copy of the employee’s documents was optional. Employers could choose to save a copy of the documents or not, as long as the chosen policy was followed in a consistent manner.

I-9 verification requirements during the COVID-19 pandemic

In March 2020, in response to the COVID-19 pandemic and the social distancing rules that followed, the federal government allowed employers to temporarily use a virtual verification process for new I-9s. This temporary process was in place until July 2023, and it allowed employers to use video conferencing to verify the employee’s documents. 

However, employers using the temporary, virtual verification process were required to obtain and keep photocopies of the documents verified in the I-9 process.  In addition, Form I-9 had to be annotated with COVID-19.  Upon return to in-person employment, the employer had to follow up with the employee(s) and conduct the standard in-person document verification under the traditional rules, and annotate the I-9 form again to reflect that the in-person follow-up verification was accomplished.

Phasing out COVID-19 Flexibilities

After the emergency declaration related to COVID-19 was lifted, the I-9 virtual verification process that had been available up to that point also ended.  Employers could no longer use the pandemic virtual verification process after July 31, 2023.  Beyond that date, the U.S. government required that employers follow up with all employees who had been verified virtually, to complete and update their respective I-9s by August 31, 2023.  The process to be followed depended on whether or not the employer was enrolled in E-Verify.

Employers who were not enrolled in E-Verify were required to conduct in-person verification of original documents for all employees previously verified virtually, even if those employees were still remote.  This had to be completed no later than August 31, 2023. In addition, any new hires on or after August 1, 2023, had to follow the traditional, in-person I-9 verification process regardless of whether the employees worked remotely or in the office.

Employers who were enrolled in E-Verify were allowed to use virtual verification for the phase-out period and conduct an I-9 document inspection through video conferencing if all the following conditions were met:

• Employee was virtually verified between March 20, 2020, and July 31, 2023; and
• Employer was enrolled in E-Verify at the time of the initial I-9 verification; and
• Employer created an E-Verify case for that employee at the time of the initial I-9 verification; and
• Employer continues to be enrolled and participating in E-Verify at the time of the phase-out document inspection

Employers enrolled in E-Verify who did not meet all of the above conditions were required to conduct the in-person verification of the original documents.

Current I-9 verification process

On August 1, 2023, USCIS introduced a new version of Form I-9. This version became mandatory on November 1, 2023, when prior version(s) of the form were no longer allowed. The new I-9 form version provides a different I-9 process, depending on the employer’s E-Verify status.

Employers who are not enrolled in E-Verify: the current I-9 form and process mandate a return to all standard, in-person verification requirements.  Virtual verification is not allowed, not even if the employee works remotely or in another state.

Qualified employers who are enrolled in E-Verify have the ability to engage in a virtual I-9 verification process. After the employee fills out Section 1 of Form I-9, the employers may proceed with the virtual verification if they comply with the following steps, in this order:

1. Receive and examine copies of the pertinent documents, front and back, from the new hire
2. Conduct a live video conference with the new hire, to ensure the documents appear genuine and pertain to the individual
3. Fill out I-9 Section 2 and check the box for the alternative procedure
4. Retain a clear copy of the verified documents with Form I-9

Who can use the virtual I-9 verification option currently?

Qualified employers who may use the virtual verification option must be participants in good standing in E-Verify. Participant in good standing means and employer who:

• Is enrolled in E-Verify for all relevant hiring sites
• Is in compliance with all E-Verify requirements, including the requirement to verify all new hires
• Continues to be enrolled and in compliance at all times while using the virtual verification procedure

The virtual verification cannot be used in a discriminatory manner.  Qualified employers who adopt a policy of using the virtual I-9 verification must make that option available to all new hires. Employers cannot require some new hires to undergo the in-person verification, while allowing others to choose between in-person and virtual.

What is the I-9 liability exposure?

I-9 mistakes can be costly.  The U.S. Immigration and Customs Enforcement (ICE) is in charge of auditing employers’ I-9 processes and records, to ensure that the I-9 requirements are met.  There are generally two types of violations in the I-9 process: knowingly hiring undocumented workers, and paperwork violations. 

If unauthorized employees are discovered in the course of a government audit, the I-9 penalties for knowingly hiring undocumented workers can range from $716 to $5,724 per employee.  But an audit does not have to reveal undocumented workers in order to subject a company to penalties.

Employers can be found liable for I-9 violations if the I-9 records are deficient or improperly completed, even if all employees are authorized to work.  That is because of the paperwork violations provision that can be, and always is, assessed independently of the immigration status of the underlying employees. The I-9 penalties for paperwork violations alone (i.e. deficient I-9 paperwork), range from $ 288 to $2,861 per form, even if the employees are working legally.

What are the most common mistakes in the I-9 process?

• Using E-Verify as a substitute for I-9
• Initiating the E-Verify process before fully completing Form I-9
• Failing to ensure the employee fills out Section 1 completely, no later than the first day of employment
• Using an outdated version of Form I-9
• Not completing the form fully (even if documents are copied and saved)
• Using the virtual verification process without meeting the proper requirements
• Accepting SSN cards marked as “VALID FOR WORK WITH DHS AUTHORIZATION ONLY” or similar restrictions
• Failing to re-verify certain documents before expiration
• Over-documenting/unfair documentary practices
• Demanding to see specific documents (“green card” or “work permit”) from non-citizen workers, while allowing U.S. citizens to choose which documents to present
• Re-verifying Lawful Permanent Resident cards
  

Considering the high liability that is possible in I-9 investigations, it is recommended that employers engage in periodic internal audits in order to ensure that all I-9 forms are properly completed, that the I-9 internal policies and procedures are consistently and correctly applied, and that all potential deficiencies are promptly identified and corrected.  Due diligence in the I-9 Employment Eligibility Verification process is the best defense in the event of an ICE audit.

For any questions related to the I-9 Eligibility Verification process, or for assistance regarding internal audits or government investigations, please contact Attorney Raluca (Luca) Vais-Ottosen at 608-252-9291 or rvo@dewittllp.com.