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Navigating E-Verify Alternative Procedure

Navigating the E-Verify alternative procedure can be challenging for qualified employers (employers in good standing in E-Verify) and busy professionals. However, this article contains helpful information provided by DHS in the document they published for the new optional Alternative Procedure for Section II of the Form I-9 document inspection rule.

Section II of Form I-9 requires all newly hired employees by the first day of employment to present documents that verify their identity and work authorization. E-Verify program administrators and general users, US-based authorized representatives, and designated employer personnel (herein Employer) must review and retain documents presented and also review and complete Form I-9 by the third business day following a newly hired employee's first day of employment for wages. 

I9 Alternative Procedure
Navigating E-Verify Alternative Procedure

For instance, for qualified Employers participating in E-Verify, after Jane accepts a job offer, (newly hired) the Employer can provide the most current version of Form I-9 with its instructions to Jane. Jane must complete Section I by the first day of employment for wages and provide* Section II requested documentation. Under alternative procedure rules, the Employer must; (1) examine all documents presented (front and back, if copies of documents are presented and are two-sided, before the live video interaction) to ensure that all documentation presented reasonably appears to be genuine; (2) conduct a live video interaction with the newly hired employee presenting the same documents that were first provided* by the third business day of the new employee's employment for wages; (3) the Employer must indicate on Form I–9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section II or for re-verification, as applicable; (4) the employer must retain a clear and legible copy of all documentation presented (front and back if the documentation is two-sided); (5) review, sign, and date Form I-9 and create a case in E-Verify after the newly hired employee's first day of employment for wages; (6) document the case number on/affixed to Form I-9. 

Currently, Employers who do not adopt the alternative procedure and physically examine the documentation presented by newly hired employees should, uniformly, make and retain all copies or scans of the documentation presented by newly hired employees and retain it with the completed Form I–9 separate from the employee's personnel file. However, Employers that use E-Verify must make and retain copies of Form I-9, List A documentation presented. E-Verify Employers who choose to copy documentation other than those required to copy for E-Verify should apply this policy consistently with respect to Form I-9 completion for all employees. Consistency is key. In the event of an audit, the INA specifically authorizes DHS, IER, and DOL officers to inspect Forms I–9, including electronic storage of any copies of employee documents retained with the corresponding Form I–9.

A qualified Employer may not offer the alternative procedure to only some employees. Qualified Employers who choose to offer the alternative procedure to newly hired employees at an E-Verify hiring site (i.e. state laws mandate public and private employer E-Verify participation), that Employer must do so consistently for all newly hired employees at that site. However, a qualified Employer may choose to offer the alternative procedure for remote hires (allowing an employee to work at an approved alternative worksite, within or outside the local commuting area) only but continue to apply physical examination procedures to all newly hired employees who work onsite or in a hybrid capacity, so long as the Employer does not adopt such a practice discriminatorily based on their citizenship, immigration status, or national origin. Qualified Employers who wish not to adopt the alternate procedure can continue to conduct physical examinations. 

If the newly hired employee does not want the Employer to apply the alternative procedure with respect to that newly hired employee, qualified Employers can not refuse to perform a physical document examination. Qualified Employers must allow newly hired employees who are unable or unwilling to submit documentation using the alternative procedure to submit documentation for physical examination. Nothing in the alternative procedure prevents an Employer from physically examining documents when requested to do so by an employee. Therefore, Employers can utilize and contract for a fee a U.S.-based professional Authorized Representative to conduct an in-person employment eligibility verification for newly hired employees in any U.S. jurisdiction. Designating a professional Authorized Representative for in-person verifications is the same as conducting an in-office physical examination of documents and completion of Form I-9. 

Instructions and guidance on how to complete Form I–9, can be found in the Form I–9 instructions. For more information and other related guidance about Form I-9 and E-Verify refer to the I–9 Central website, including the M–274, Handbook for Employers. 


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