What changed
On July 25, 2023, the Department of Homeland Security published its final rule creating an optional alternative procedure to the in-person physical document examination historically required for Form I-9, codified at 88 FR 47990 and effective August 1, 2023. The rule lets qualifying employers examine Section 2 documents remotely — via live video interaction after receiving copies — instead of dragging the new hire (or a notary) into a room to handle the original passport, green card, or driver’s license. It is the first durable post-COVID change to I-9 procedure since the form’s 1986 origin under the Immigration Reform and Control Act.
Eligibility is narrow. To use the alternative procedure, an employer must be a participant in good standing in E-Verify for the hiring site where the employee will work, must have completed E-Verify tutorial training, and must continue to meet E-Verify’s record-keeping obligations. Employers not enrolled in E-Verify must still examine documents in-person — full stop.
The rule was paired with a new edition of the form (Form I-9 (08/01/23)), which added a checkbox in Section 2 for employers using the alternative procedure and consolidated Lists B and C onto a single page. The companion M-274 Handbook for Employers was updated the same day.
Why it matters
Form I-9 violations carry per-paperwork-violation civil penalties that, as of the 2024 inflation adjustment, range from $281 to $2,789 per Form I-9 for a first offense. An employer with 400 hires and a sloppy Section 2 practice can be looking at six figures of exposure on a routine ICE Notice of Inspection. Three places trip employers up most often:
Section 1 (employee attestation). The employee — not the employer — must complete Section 1 by the end of the first day of work for pay. The single largest Section 1 error is the employer pre-populating the citizenship/status box for the employee. ICE auditors treat that as a paperwork violation even when the underlying status is correct. The M-274 handbook is explicit: a preparer or translator may help, but they must sign the preparer/translator certification.
Section 2 (employer review). The employer must physically (or now, under the alternative procedure, remotely) examine documents within three business days of the employee’s start date. Two recurring failures: (1) reviewing photocopies instead of originals (still impermissible for non-E-Verify employers), and (2) recording document titles, issuing authorities, or expiration dates inconsistently with what the document actually shows. The 2023 form change moved Lists A/B/C onto a single page to reduce the second category of error.
Section 3 (reverification). Reverification is required when a List A or List C document with an expiration date expires — and is forbidden when reverifying a U.S. passport, a Permanent Resident Card (Form I-551), or a List B identity document. Employers routinely reverify green cards because they expire on their face. They shouldn’t — that’s a discrimination risk flagged by the DOJ Immigrant and Employee Rights Section.
The remote-verification rule does not change any of these substantive obligations. It only changes the manner of the Section 2 examination for qualifying employers.
Way forward
If you intend to use the alternative procedure: enroll the relevant hiring site in E-Verify, complete the required tutorial, then build a written workflow that captures (a) the live video interaction date, (b) the copies retained, and (c) the Section 2 checkbox marking. Retain document copies for the longer of three years after hire or one year after termination, per the recordkeeping rule in 88 FR 47990.
If you used the COVID-era flexibilities (in effect from March 20, 2020 through July 31, 2023): you had until August 30, 2023 to perform physical inspection of documents previously examined remotely under the old flexibilities, unless you qualified to adopt the new alternative procedure and elected to do so. Employers who missed that deadline should consult counsel before the next ICE worksite enforcement audit cycle.
For employees being onboarded remotely under the new rule, the employer must transmit copies of Section 2 documents to the workplace location and retain them with the Form I-9. The most common implementation defect we see is HR transmitting documents to a corporate share drive without tying them to the underlying I-9 record — a problem on audit because ICE requests the I-9 plus the copies as a unit.
A final cautionary note: states are beginning to layer their own employment verification requirements on top of federal I-9. The Florida E-Verify mandate (Fla. Stat. §448.095) and similar provisions in Mississippi, Tennessee, North Carolina, Georgia, Utah, Arizona, Alabama, and South Carolina mean that the federal alternative procedure interacts with state law in ways that are not yet uniform. Employers operating in multiple states should not assume that federal eligibility under the 2023 rule resolves state-law obligations.
Employers should also be mindful of the anti-discrimination overlay under 8 U.S.C. §1324b. Asking a particular employee for “more or different” documents than the form requires — frequently in well-intentioned compliance overshoots — is itself an actionable claim. The DOJ’s Immigrant and Employee Rights Section has settled multiple six-figure matters against employers who required specific List A documents (commonly: a green card) from lawful permanent residents while accepting any List B + C combination from U.S. citizens. The remote-verification procedure does not change document-choice rules; the employee picks which acceptable document(s) to present, and the employer may not steer that choice.
A subtler trap is the interaction between the Section 2 three-business-day deadline and remote onboarding logistics: if the employer is using the alternative procedure but the new hire’s documents do not arrive (postal delay, lost shipment, etc.), the employer cannot fall back to a paper-only Section 2 after day three without creating a paperwork-violation timestamp. Build in a same-day digital intake step before the start date wherever possible.
Disclaimer
This article is editorial and educational, not legal advice. The Form I-9 alternative procedure, E-Verify obligations, and worksite enforcement landscape evolve rapidly, and state law adds further variation. Verify against the Federal Register notice and the current Form I-9 instructions before relying on any specific procedural step, and consult qualified immigration or employment counsel for matters affecting your business.