DHS Alternative Procedure
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Understanding the Impact of the DHS Alternative Procedure on Workplace Compliance Policies

Form I-9, officially known as the Employment Eligibility Verification Form, is a document used by employers in the United States to verify the identity and employment authorization of individuals they hire. Employers of remote workers, and/or employers with centralized Human Resources departments may be eager to incorporate the Department of Homeland Security’s (“DHS’”) new “Alternative Procedure” to facilitate the document review process required for the Form I-9.  However, employers must first consider whether their organization will meet the requirements to use the Alternative Procedure and how they can ensure consistent and compliant practices.

The Physical Presence Requirement : Why the DHS Alternative Procedure is Needed

During the Form I-9 completion process, employers are obliged to physically examine the original documents presented by the employee to establish their identity and employment authorization. The employer or an authorized representative must physically meet with the employee to complete the Form I-9. This means that the employer cannot accept photocopies or scanned copies of documents; the original documents must be presented in person and reviewed by the employer, or an authorized representative, in the employee’s physical presence. Upon review and recording the information for the documents presented, the employer or authorized representative must sign and date Section 2 of the Form I-9 to certify, under penalty of perjury, that they have physically examined the original documents and that they appear to be genuine and relate to the employee.

Compliance Challenges for Employers of Remote Workers

Finding a dependable approach for reviewing the documents presented by employees can pose a significant challenge for employers of remote workers, as well as multi-site employers with a centralized Human Resources function.  Compliance-conscious employers may feel uneasy when designating an “Authorized Representative” to conduct the physical inspection of documents when they cannot verify the competency of the Authorized Representative or enforce workplace rules upon them.

DHS Alternative Procedure Provides a Solution for Qualifying Employers

On August 1, 2023, DHS announced an Alternative Procedure to allow employers to remotely review documents presented by employees to establish their identity and employment authorization. The Alternative Procedure permits employers to review documents presented by the employee via live video interaction, provided certain requirements are met. Eligibility criteria for employers are discussed in detail in our prior article regarding the Alternative procedure.

The DHS Alternative Procedure may affect workplace rules including:

  • E-Verify Participation
  • Recordkeeping Practices
  • Onboarding Practices
  • Employee Training Requirements

E-Verify Participation:

Employers Must Participate in E-Verify at All Worksites That Intend to Use the Alternative Procedure

E-Verify is an internet-based system operated by the U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA) It is designed to assist employers in verifying the employment eligibility of newly hired U.S. workers by comparing the information provided by the employee on the Form I-9 with records in the federal government databases.

Unless otherwise required by state law or Federal Contract, Employers are not required to participate in E-Verify.  However, if an employer wishes to review documents using the Alternative Procedure, they must be enrolled, and in good standing, with E-Verify at every worksite where the Alternative Procedure may be used.   

For example: If an employer has four worksites, A, B, C and D and only participates in E-Verify at sites A and B, they may not use the Alternative Procedure to review the documents of an employee hired at worksites C or D. 

Recordkeeping Practices:

It’s important for employers to understand that both Form I-9 and E-Verify have distinct but complementary roles in verifying employment eligibility. While Form I-9 is used to collect and verify employee information, E-Verify is an additional tool that can be used to electronically verify the information provided on Form I-9. Proper recordkeeping is essential for both to ensure compliance with immigration and employment laws in the United States.

The addition of the Alternative Procedure adds a new level of complexity to these existing requirements.

Prior to document review via video interaction, the employee must send clear copies of the front and back of the documents to the reviewer.  These copies must be kept with the Form I-9. If it is not an employer’s current policy to maintain copies of the documents reviewed (except as required by E-Verify), their policy should be revised.

Recordkeeping considerations include:

  • Taking necessary precautions to protect the confidentiality and security of the private personal information contained in documents presented by the employees:   The methods by which the documents are shared and stored should comply with all relevant data protection and privacy laws as well as an employer’s cybersecurity policies.

  • Ensuring compliance with recordkeeping practices:  Consistency is key.  A policy of maintaining clear copies of the front and back of all documents reviewed is easier and more efficient to maintain than a more complex policy of maintaining copies as required by E-Verify or those presented for review via “Alternative Procedure”.
  • Determining whether video interactions should be recorded and stored: This step is not required by DHS’s Alternative Procedure, but there may be value for purposes of audit. However, maintaining evidence that is not required may pose some risks so it is important to discuss what works best for your organization with your Maggio Kattar attorney.

Onboarding Practices:

The addition of the Alternative Procedure to an employer’s onboarding process requires consideration of the circumstances in which it will be used.  It is important to note that the Alternative Procedure is not “all-or-nothing”.  An employer may choose to use the Alternative Procedure for all remote workers at an eligible hiring site and physically examine the documents of on-site workers, or simply use the Alternative procedure at an eligible hiring site when needed.   However, an employer may not refuse to review documents in the employee’s physical presence, and it may not apply the Alternative Procedure in a manner that may be discriminatory. 

Creating an effective compliance training process involves careful planning and execution to ensure that employees understand and adhere to relevant laws, regulations, and company policies. Here are the steps to develop and implement an effective compliance training program:

Onboarding considerations include:

  • Identifying hiring sites that are eligible to use the Alternative Procedure
  • Identifying when use of the Alternative Procedure is permitted
  • Identifying resources who will perform the review
  • Communicating the Alternative Procedure process to employees
  • Identifying interfaces with other onboarding processes and systems
  • Determining acceptable methods for conducting the review via video interface
  • Identifying and avoiding potential discriminatory practices
  • Audit to ensure compliance

Employee Training Requirements:

Training is a proactive and essential component of any organization’s risk management strategy. It helps employees understand their roles in maintaining compliance, equips them with the knowledge and skills necessary to meet regulatory requirements, and contributes to the overall success and reputation of the organization.

Once an employer has determined its process for employing the Alternative Procedure, it is crucial to train all staff involved in the onboarding of new employees and/or maintenance of Form I-9 records. A successful training plan should consider:

  • The laws, regulations and workplace rules that apply.  This includes data protection, anti-discrimination, E-Verify and the employment eligibility verification process.
  • Roles and responsibilities of all individuals involved in the Form I-9 Process, including who has ultimate responsibility for compliance
  • Appropriate level of training required by each role.
  • Training frequency and resources
  • Systems and tools used to support the process
  • How compliance will be monitored via internal audit
  • Resources for ongoing training to keep up with changing regulations

Contacting an attorney for help with compliance policy matters is a proactive and prudent step for employers. It not only helps organizations navigate complex legal requirements but also minimizes the risks associated with non-compliance, legal disputes, and potential financial penalties. Your Maggio Kattar attorney can serve as a valuable partner in creating, implementing, and maintaining effective compliance policies and procedures that are legally sound and tailored to your organization’s unique needs and risks.