New Remote I-9 Document Verification Rule - Effective On August 1, 2023

Today DHS has published the final rule for the new I-9 alternative remote document verification procedures, which can be found here: https://www.federalregister.gov/d/2023-15533. The main takeaways of this new alternative form of document inspection are:

• Effective Date – The new procedure described below becomes available for use on August 1, 2023. Furthermore, as of the effective date employers must utilize the new Form I-9 for all new-hires, which can be downloaded here: https://www.uscis.gov/i-9. As of August 1st, prior versions of the Form I-9 will now longer be allowed.

• Qualifying Employers – This new, alternative procedure for document verification is currently only available to companies who are in good standing with E-Verify, and also only to either: (a) the hiring sites that are currently registered for E-Verify, or (b) new hires for remote, non-hybrid positions.

1. The company can pick and choose for each E-Verify registered hiring site whether to follow the in-person document inspection or the new alternative remote verification inspection. Whichever choice the employer makes must be followed for all new hires at that hiring site. Presumably if the company wants to later make a change on which method of document verification that they’d like to use, the changeover must be date-specific on when the changeover occur such that all new hires at that hiring site utilize the new procedure.

2. The remote verification procedure is also available to any new hires who will be in remote positions. New hires who will be in a hybrid in office and work from home position must follow whichever procedure the company chooses to use for that hiring site. including both workers who are completely in office or in a hybrid work from home arrangement.

• Document Retention - Qualified employers who use the alternative procedure must retain a clear and legible copy of all documents that were presented to and remotely examined by, the employer. Electronically storing this is fine, so long as the reproduction will meet the clear and legible standard.

• Description of the New, Alternative Procedure – Within three business days of an employee's first day of employment, a qualified employer (or an authorized representative acting on such an employer's behalf, such as a third-party vendor) who chooses to use the alternative procedure must:

1. Examine copies (front and back, if the document is two-sided) of Form I–9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine.

2. Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must first transmit a copy of the document(s) to the employer (per Step 1 above) and then present the same document(s) during the live video interaction.

3. Indicate on the Form I–9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable. Note: The new version of the Form I-9 will include a checkbox. As a reminder, all I-9s completed on or after August 1, 2023 must use the new version of the form.

4. Retain a clear and legible copy of the documentation (front and back if the documentation is two-sided).

5. In the event of a Form I–9 audit or investigation by a relevant federal government official, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.

Feel free to reach out if you have any questions about this new alternative process, or if you have any other questions about the Form I-9.

USCIS to Open Registration for H-1B Cap Lottery Soon

The U.S. Citizenship & Immigration Services (“USCIS”) will be publishing information about the upcoming registration period for the H-1B Cap Lottery soon. The H-1B visa is a nonimmigrant classification that allows companies to employ foreign nationals in the United States who will be working in a ‘specialty occupation,’ i.e. a role that requires a Bachelor’s degree (or its equivalent) in a specific field of study. Due to its versatility, the H-1B visa classification is popular for employers. However, since 2004 the U.S. Congress has set a limit that only approximately 80,000 new H-1B visas may be issued each year.

Due to: (1) the U.S. government operating on a fiscal year that runs from October to September, (2) employers being allowed to apply for an H-1B visa up to six months in advance of the requested start date, and, (3) many more people applying for H-1B visas than there are available, e.g. last year they received 483,927 H-1B registrations for those 80,000 spots, USCIS runs a program where employers who would like to employ a foreign national pursuant to H-1B status must register that foreign national for a lottery that is held a little more than 6 months before the start of the next fiscal year, i.e. in late-March. If the worker is selected in the lottery, then the employer can file an H-1B petition on behalf of that foreign national between April and June.

While USCIS has not yet published the exact dates of the registration period for this coming fiscal year, we expect that they will soon. Over the past few years they have opened the registration period at the start of March and have kept it open for approximately two and a half weeks. Employers should therefore start identifying any foreign nationals who they may want to register for the H-1B Cap Lottery.

People to consider include:

• F-1 foreign students who have graduated and are employed pursuant to OPT employment authorization or who are graduating this Spring.

• J-1 foreign scholars or researchers.

• Foreign nationals in other nonimmigrant statuses that present intent or timing challenges for green card sponsorship (TN, H1B1, L-1 from countries subject to Immigrant Visa backlogs, and others).

• Foreign nationals in derivative H-4, E-1/E-2 or L-2 status with employment authorization which is tied to the continuing status of their H-1B/E-1/E-2/L-1 spouses.

• Foreign nationals who are currently living outside of the U.S.

Do not hesitate to Grant Godfrey should you have any questions.