A. What does the alternative procedure entail?

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; 
4. Retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back if the documentation is two-sided); and
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.

B. Which employers are qualified to use the alternative procedure?

At this time, employers who are participants in good standing in E-Verify are qualified to use the alternative procedure. A participant in good standing in E-Verify in this context refers to an employer that has enrolled in E-Verify with respect to all hiring sites in the United States that use the alternative procedure; is in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and continues to be enrolled and a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure.

C. Must qualified employers using the alternative procedure use E-Verify to create cases?

Yes. Once enrolled in E-Verify, employers will be required to create a case for all newly hired employees, whether or not the alternative procedure is used, at each hiring site that is enrolled in E-Verify, in accordance with the E-Verify Memorandum of Understanding.

E-Verify employers will be required to follow all applicable requirements, such as requirements imposed by the Federal Acquisition Regulation (FAR) E-Verify clause for certain contracts or federal contractors. E-Verify employers must also avoid unlawful discrimination in the E-Verify process such as treating employees differently based on their citizenship, immigration status, or national origin, in order to avoid violating 8 U.S.C. 1324b and remain in compliance with E-Verify requirements.

D. May a qualified employer continue to examine documents physically instead of using the alternative procedure?

Yes. Use of this alternative procedure is entirely optional. Nothing in the alternative procedure prevents qualified employers from physically examining documents for the Form I–9.

E. May a qualified employer offer the alternative procedure to only some employees?

A qualified employer does not need to use the alternative procedure, but if a qualified employer chooses to offer the alternative procedure to some employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site. However, a qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic. Under no circumstances can employers unlawfully discriminate, such as by deciding who is eligible for the alternative procedure based on a protected characteristic.

F. Can all employers take advantage of this alternative procedure?

No. At this time, only employers who are participants in good standing in E-Verify are eligible to use the alternative procedure.

G. Are there special Form I–9 reporting requirements associated with the alternative procedure?

Yes, as noted above, qualified employers must indicate by completing the corresponding box, on the Form I–9, that an alternative procedure was used to examine documentation for either Section 2 or when conducting reverification.

H. Are there additional document retention requirements associated with the alternative procedure?

Yes, as noted above, qualified employers applying the alternative procedure must retain clear and legible copies of all documents presented by the employee seeking to establish identity and employment eligibility for the Form I–9 and, in the event of an audit, provide access to these copies upon request. The alternative procedure retention requirement applies only to employees for whom the employer used the alternative procedure, not all employees of the employer.

I. When does the alternative procedure go into effect?

Qualified employers may use the alternative procedure starting on August 1, 2023. Except as outlined in Question N below, employers cannot apply the alternative procedure to employees hired prior to the effective date of this notice. Other employers (those not enrolled in E-Verify) may do so after becoming a participant in good standing in E-Verify by enrolling and receiving the required training.

J. How long will the alternative procedure be available?

The alternative procedure described in this document does not expire. However, DHS may amend or cancel it upon the Secretary's determination that doing so is necessary to maintain an equivalent level of security or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services pursuant to Section 319 of the Public Health Service Act, or a national emergency declared by the President pursuant to Sections 201 and 301 of the National Emergencies Act. The Secretary will announce any such changes to this alternative procedure, or seek public comment thereon, as appropriate, in the Federal Register .

K. If the employee does not want the employer to apply the alternative procedure with respect to that employee, can qualified employers refuse to perform physical document examination?

No, qualified employers must allow 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.

L. What methods of document verification are acceptable?

To determine whether the documentation reasonably appears to be genuine, the qualified employer (or an authorized representative acting on the employer's behalf, such as a third-party vendor) must examine a copy of each document presented by the employee. In addition, the qualified employer must conduct a live video interaction with the employee who presents the document(s) to ensure that the documentation relates to the employee. The employee must first transmit a copy of the document(s) to the employer and then present the same document(s) during the live video interaction.

M. Can qualified employers that were enrolled in E-Verify during the COVID–19 temporary flexibilities use this alternative procedure to satisfy the requirement to physically examine Form I–9 documentation that had been examined remotely under the COVID–19 flexibilities?

Yes, if certain conditions are met. Qualified employers that (1) were enrolled in E-Verify at the time they performed a remote examination of an employee's Form I–9 documentation for Section 2 or reverification while using the COVID–19 flexibilities, (2) created an E-Verify case for that employee (except for reverification), and (3) performed the remote inspection between March 20, 2020 and July 31, 2023, can use the alternative procedure to satisfy the required physical examination of the employee's documents for that Form I–9. Such employers should not create a new case in E-Verify.

All employers that use the alternative procedure instead of physical examination as described above must follow the steps of the alternative procedure and add “alternative procedure” with the date of examination ( i.e., the date the employer performed a live video interaction as required under the alternative procedure) to the Section 2 Additional Information field on the Form I–9 or in Section 3, as appropriate. As noted in Question E above, under no circumstances can employers unlawfully discriminate, such as by deciding who is eligible for this use of the alternative procedure based on a protected characteristic.

Employers who were not enrolled in E-Verify at the time they initially performed a remote examination of an employee's documents ( i.e., within three business days of the employee's first day of employment) under the COVID–19 flexibilities between March 20, 2020 and July 31, 2023, are required to physically examine the employee's Form I–9 documents in the employee's physical presence. As previously announced, such physical examination must be completed no later than August 30, 2023.

N. Audits and Evaluating the Alternative Procedure

The INA specifically authorizes DHS, IER, and DOL officers to inspect Forms I–9, including any copies of employee documents retained with the corresponding Form I–9. All employers are subject to audits and investigations. DHS will monitor and evaluate data and information from ICE audits conducted to assess any measurable impacts to system integrity as between the employers that use the alternative procedure and those that continue with physical document inspection. Additionally, the final rule authorizes the Secretary to conduct a pilot program. DHS will evaluate all data and information collected through ICE audits after the implementation of this alternative procedure and future pilot programs with a continued goal of reducing unnecessary burdens and ensuring the security of any alternative procedures relative to physical document examination. The Secretary will announce any such pilot programs, new procedures, or changes to this alternative procedure, or seek public comment thereon, in the Federal Register .

O. Permitted Continued Use of Form I–9 (Edition: 10/21/2019) During a Grace Period

As of August 1, 2023, employers should begin using Form I–9 with a version date of “(Edition: 08/01/2023)” to comply with their employment eligibility verification responsibilities. The version date is located in the bottom corner of the form. However, employers may continue using the prior version of Form I–9 (Edition: 10/21/2019) through October 31, 2023. If using the 10/21/2019 version of the Form I–9 for the alternative procedure, employers must indicate their use of the alternative procedure by writing “alternative procedure” in the Additional Information field in Section 2. After the grace period has elapsed, no later than November 1, 2023 employers must use the new Form I–9 (Edition: 08/01/2023) and indicate their use of the alternative procedure by completing the corresponding box in Section 2 or in the section corresponding to reverification (which is Supplement B in the August 1, 2023 edition of Form I–9), as appropriate.

After October 31, 2023, the prior version of Form I–9 will no longer be valid for use and will be obsolete. The public can download the new Form I–9 from www.uscis.gov/​i-9. After October 31, 2023, employers who fail to use Form I–9 (Edition: 08/01/2023) may be subject to all applicable penalties under section 274A of the INA, 8 U.S.C. 1324a, as enforced by ICE.

Employers do not need to complete the new Form I–9 (Edition: 08/01/2023) for current employees who already have a properly completed Form I–9 on file, unless reverification applies. Unnecessary verification may violate the INA's anti-discrimination provision, section 274B of the INA, 8 U.S.C. 1324b, which is enforced by the Immigrant and Employee Rights Section (IER) in the Department of Justice's Civil Rights Division.

P. Can the Employer or Employer Agent who is completing Section 2 using the DHS Alternative Procedure complete Section 2 from outside fo the United States?

No, USCIS requires that the Form I-9 be completed within the Unite States of America and it's territories.  The DHS Alternative Procedure for Document Examination does not change or remove this requirement.

Q. When was the new Form I-9 Available in Tracker I-9?

The new Form I-9 (Rev. 08/01/23) was made available in the Tracker I-9 application as of 10/18/23 via our Rome Release.  With this update any I-9 records where Section 1 was signed after the Rome release will us the new Form I-9 (Rev. 08/01/23). 

R. How can I utilize the DHS Alternative Procedure for Section 2 in the Tracker I-9 system?

Enabling the Remote Document Inspection feature in your Form I-9 options (Available to Admins) will allow you to use the DHS Alternative Procedure for remote document inspection in Section 2.  More information about this feature and how to enable it can be found in our Remote Document Inspection Guide.