Remote work has become the new norm for many employees, creating opportunities as well as challenges for employers. One of those challenges is verifying the identity and eligibility of remote workers for employment in the United States.
Form I-9,[1] a document all employers must complete and retain to verify the identity and employment authorization of individuals hired for employment in the United States, has been updated to adapt to the changing landscape of remote work. In addition to a new Form I-9 that employers were required to use beginning November 1, 2023, employers that meet certain requirements may complete employee verification using remote procedures.
Employers eligible to use the new I-9 remote verification policy should understand how it works to avoid costly penalties. The U.S. Immigration and Customs Enforcement Agency can impose penalties for I-9 violations. These penalties range from $272 to $2,701 for first-time paperwork violations and $676 to $5,404 for first offenses related to hiring unauthorized workers. Repeat offenses can result in penalties of $5,404 to $27,108 per violation. Cases with aggravating circumstances can lead to even higher fines and even criminal penalties.
I-9 Changes Reflect New Remote Work Reality
Under the Immigration Reform and Control Act of 1986, employers must verify employment eligibility using Form I-9 for all employees, including citizens, noncitizens, part-time workers, and full-time workers.
Prior to the COVID-19 pandemic, employers were required to do a physical examination of a new employee’s documentation. During the pandemic, the Department of Homeland Security (DHS) relaxed its standards for in-person I-9 verification to accommodate employers whose workers were suddenly forced to work remotely.
Originally meant to be temporary, the new measures allowed employers to remotely inspect Form I-9 documents and obtain a copy of them within three business days of an employee’s start date. These measures have since evolved into more permanent solutions to accommodate the changing nature of post-pandemic work.
Approximately one out of eight full-time employees works from home in 2023, while more than one out of four are hybrid workers. By 2025, an estimated 36.2 million Americans will be working remotely—an 87 percent increase compared to pre-pandemic levels.[2]
In July 2023, the DHS announced that it would publish an updated Form I-9. That same month, DHS published a final rule authorizing remote verification procedures for Form I-9.[3] Both changes became effective August 1, 2023, although the previous Form I-9 was allowed to be used through October 31, 2023.[4]
Who Can Participate in Remote I-9 Verification?
To qualify for remote verification, employers must participate in good standing in E-Verify,[5] which means meeting the following requirements[6]:
- be enrolled in E-Verify for all US hiring sites that use the optional remote I-9 verification process
- comply with all E-Verify requirements, including verifying the employment eligibility of new hires in a timely manner at the company’s E-Verify locations
- continue to be an E-Verify participant in good standing for as long as the employer uses remote verification
New E-Verify employers must complete an E-Verify tutorial that includes fraudulent document awareness training. Employers currently enrolled in E-Verify should already have completed this training and do not have to go through it again, although new human resources (HR) employees could benefit from the tutorial.
Here are additional key points to keep in mind about remote I-9 verification:
- The I-9 remote verification process is optional. Companies may choose to continue using the standard, in-person I-9 verification procedure. They may also opt to use remote verification for remote workers and in-person document review for in-office or hybrid employees.
- An I-9 review policy should not discriminate. Although employers can use the alternative procedure for remote employees only but continue to apply physical examination procedures to all on-site or hybrid employees, they may not adopt such a practice for a discriminatory purposes.
How to Remotely Verify an Employee’s ID
According to DHS,[7] remote examination of documents procedures should include the following steps:
- Examine the front and back of digital copies of employee documents from the I-9 Lists of Acceptable Documents to determine that the documentation relates to the individual.
- Conduct a live video call with the employee to further review and confirm that their employment eligibility and identity documents appear to be genuine.
- Mark the corresponding box on Form I-9 indicating that the employer used remote verification.
- Retain a clear and legible copy of the front and back of the employee’s digital documentation.
Best Practices for Implementing a Remote I-9 Policy
Employers have generally responded positively to the new rules allowing remote employee verification, but navigating the updated I-9 requirements for remote workers demands a strategic approach. Here are some best practices for employers to ensure compliance:
- Establish clear policies. Develop and communicate clear policies and procedures for remote I-9 verification. Provide guidance on the use of technology for virtual document inspection and ensure that HR employees are aware of the process.
- Use compliant technology. Employers should leverage secure and compliant technology for remote document verification. Make sure that the chosen tools meet the legal requirements for I-9 completion and adhere to data privacy regulations.
- Train and educat Train HR personnel and relevant staff on the updated I-9 requirements for remote workers. Understanding the nuances of remote verification and compliance is crucial for avoiding potential mistakes and penalties.
- Maintain consistency in verification. Whether in-person or remote, maintain consistency in the verification process. Establish clear criteria for accepting documents and make certain that all employees undergo the same level of scrutiny, regardless of their work location or citizenship status.
- Implement regular audits and updates. Conduct regular audits of remote I-9s to identify any discrepancies or errors. Regularly update your processes to align with any changes in US employment laws and guidelines.
We Can Help
The recent updates to Form I-9 reflect the evolving nature of work and provide employers with the tools they need to ensure compliance in a remote environment. As remote work continues to reshape the employment landscape, staying abreast of the latest I-9 requirements is imperative for employers. Regardless of whether you have remote employees, for help ensuring that your business is legally compliant with I-9 requirements, reach out to our small business attorneys to schedule an appointment.
[1] Dep’t of Homeland Sec., Employment Eligibility Verification, Form I-9 (Aug. 1, 2023), https://www.uscis.gov/sites/default/files/document/forms/i-9.pdf.
[2] Katherine Haan, Remote Work Statistics and Trends in 2024, Forbes (June 12, 2023), https://www.forbes.com/advisor/business/remote-work-statistics/.
[3] Dep’t of Homeland Sec., Optional Alternative 1 to the Physical Document Examination Associated with Employment Eligibility Verification (Form I–9), 8 C.F.R. pt. 274a (2023), https://public-inspection.federalregister.gov/2023-15532.pdf.
[4] Ryan Golden, USCIS Announces New Form I-9, Will Allow Permanent Remote Review for E-Verify Users, HRDive (July 24, 2023), https://www.hrdive.com/news/new-form-i-9-permanent-remote-review-e-verify-ice-dhs/688652.
[5] What Is E-Verify, E-Verify, https://www.e-verify.gov/about-e-verify/what-is-e-verify (June 2, 2023).
[6] 8 C.F.R. pt. 274a.
[7] U.S. Citizenship & Immigr. Servs., Remote Examination of Documents (Optional Alternative Procedure to Physical Document Examination), https://www.uscis.gov/i-9-central/remote-examination-of-documents (Aug. 9, 2023).
