This rule offers an optional alternative to the traditional in-person physical examination of documentation for establishing identity and employment authorization when completing the Form I-9.

The final rule allows employers who are participants in good standing in E-Verify to complete Form I-9 and perform document inspections via video conference. Starting August 1, 2023, employers will have the option to use this alternative procedure, making the process more flexible and efficient while ensuring compliance.

The API rule allows certain qualified employers (namely, those who are E-Verify participants in good standing) to conduct Form I-9 document inspections virtually if:

1. The hiring is being done through an E-Verify hiring site and an E-Verify case is created for each new hire;
2. The employer retains copies of all documents used in the Form I-9 completion process;
3. The employer and/or those creating the E-Verify cases complete certain trainings; and
4. The employer and/or authorized representative examines the copies of the documents submitted by the employee, conducts a video call with the employee where those same documents are presented again, and notates the virtual inspection on the Form I-9 itself.

Employers may begin using this method on August 1, 2023, but may continue conducting in-person document inspections and Form I-9 completion if they choose to do so. The API rule gives organizations another means by which Form I-9 can be completed. However, those implementing both in-person and API completion methods must ensure that they are not offered in a seemingly discriminatory manner.

The entire text of the rule is available here and the implementing guidance available here. Certiphi Screening encourages all organizations to thoroughly review the rule with competent legal counsel and their internal teams before implementing a virtual inspection program.

Posted: July 25, 2023

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