New Form I-9 Compliance Updates
New Form I-9 Edition; New Virtual Verification Procedure for Eligible E-Verify Employers; and Temporary Remote I-9 Flexibilities End, with Action Required by August 30, 2023.
The Department of Homeland Security (DHS) announced three important Form I-9 and compliance-related updates for employers. First, DHS published a new rule and will begin permitting certain employers to use an alternative procedure to conduct remote, virtual inspection of employees' documents used in the Form I-9 employment eligibility verification process on August 1, 2023.
Second, on August 1, 2023, the U.S. Citizenship and Immigration Services (USCIS) published a new edition of the Form I-9 with specific enhancements.
Third, employers who utilized the temporary COVID-19 virtual verification flexibilities between March 20, 2020, and July 31, 2023, who are participating in E-Verify, and who created a case in E-Verify for employees whose documents were reviewed virtually, may use the alternative procedure beginning August 1, 2023 to update those Forms I-9, rather than having to conduct an in-person physical examination by the August 30, 2023 deadline. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities and who used the temporary virtual verification flexibilities must conduct an in-person inspection and update corresponding Forms I-9 no later than August 30, 2023.
NEW ALTERNATIVE PROCEDURES FOR CERTAIN E-VERIFY EMPLOYERS
The biggest change in I-9 compliance is the new alternative procedure available for eligible E-Verify employers to remotely examine Form I-9 documents, instead of the current requirement to examine documents in-person.
Employers must meet the following requirements to take advantage of the new alternative procedure that begins on August 1, 2023:
- Be enrolled and in good standing in the E-Verify program.
- Be enrolled in E-Verify for all hiring sites in the United States where the employer will use the alternative procedure.
- Have complied with all E-Verify requirements, including verifying the employment eligibility of newly hired employees in the United States.
- Have completed an E-Verify training concerning fraud awareness and anti-discrimination.
WHAT IS REQUIRED WITH THE NEW ALTERNATIVE FORM I-9 VERIFICATION PROCESS?
In addition to being enrolled in E-Verify and meeting the other eligibility requirements at the time the Form I-9 is completed, employers must follow the following process:
- Employee provides copies of acceptable Form I-9 documentation (front and back) to the employer.
- Employer examines copies of the employee's documentation.
- Employer conducts a live video interaction to review the same Form I-9 documentation sent to the employer to ensure they appear to be genuine and related to the employee.
- Employer indicates on the employee's Form I-9 that the alternative procedure was used either by writing "alternative procedure" in the Additional Information field in Section 2 for editions prior to August 1, or using the new Form I-9, by completing the checkbox for alternative verification.
- Employer must retain clear and legible front-and-back copies of the presented documentation.
- Employer must complete Section 2 of Form I-9 within the first three days of hire.
- Employer must create and submit an E-Verify case within the first three days of hire.
Qualified employers are not required to use the alternative virtual verification procedure and may elect to use this procedure for remote employees only, and not for employees who work onsite or in hybrid capacity, but may not discriminate in this decision-making process. In addition, employees who are unable or unwilling to submit documents following this alternative procedure must be permitted to submit documents for in-person physical inspection.
THE NEWLY REVISED FORM I-9
The newly revised Form I-9 will have significant improvements. Employers may use the Form I-9, edition date October 19, 2019 through October 31, 2023. All employers must use the new Form I-9, edition date August 1, 2023, starting November 1, 2023.
The revised Form I-9 is rearranged and streamlined. Significant changes include:
- The Form I-9 (Sections 1 and 2) is reduced in length to a single side/sheet, and the Instructions are reduced from 15 to 8 pages.
- The new Form I-9 can be filled out on tablets and mobile devices.
- Section 1, Preparer/Translator Certification, is moved to a separate, standalone supplement that employers can provide to employees when necessary.
- Section 3, Reverification and Rehire, is also moved to a standalone supplement that employers can print if or when rehire occurs or reverification is required.
- The Lists of Acceptable Documents is revised to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation.
- There is a new checkbox where employers (who are enrolled and in good standing with E-Verify) can indicate when they examined Form I-9 documentation remotely under the DHS-authorized alternative procedure rather than via physical examination.
"IN-PERSON" VERIFICATION FOLLOWING END OF COVID-19 FLEXIBILITIES
The temporary COVID-19 flexibilities, which permitted virtual inspection of documents, ended on July 31, 2023, and the deadline for employers to complete the physical documentation inspections is August 30, 2023. DHS has authorized the new alternative procedure described above to be used to satisfy the physical inspection requirement for employers who were enrolled in and created an E-Verify case for the subject employee when the remote inspection occurred between March 20, 2020, and July 31, 2023.
Employers who were not enrolled in E-Verify during the COVID-19 flexibilities and who utilized the temporary virtual verification flexibilities must complete an in-person physical document inspection and update applicable Forms I-9 by August 30, 2023.
Employers should identify all Forms I-9 that require an update and come up with a plan for an in-person verification of each employee's identity and work authorization documentation. It is also a good time to confirm that the employer has written documentation outlining their remote onboarding and telework policy for each employee who was verified remotely as required by Immigration and Customs Enforcement. For employees who are remote, employers may consider utilizing a remote (but not virtual) Form I-9 verification procedure where each remote employee assists in identifying someone who can complete the in-person verification as an agent of the employer.
Any individuals conducting the in-person, physical inspections of an employee's documentation should be provided instructions on how to correctly update the Form I-9. It is also important to note that employees can present their choice of identity and work authorization document(s) during their in-person meeting to update their Form I-9. Employees cannot be required to present the same documentation that was inspected virtually.
USCIS has provided guidance and examples on how to update paper Forms I-9. How to properly update the Form I-9 upon conducting the in-person inspection will depend upon whether the employee presents the same documentation as presented remotely when the I-9 was initially completed, and will also depend upon whether the same employer representative updates the Form I-9. USCIS guidance addresses these various scenarios.