Summary: A new edition of the Form I-9 was recently issued by the U.S. Citizenship and Immigration Services and employers will be required to use it by November 1, 2023. Additionally, a final rule was recently published authorizing certain employers to use an "alternative procedure" to inspect Form I-9 documents remotely. Read on for more information.
On August 1, 2023, the U.S. Citizenship and Immigration Services (USCIS) issued a new edition of the Form I-9. While the new Form I-9 is available immediately, employers are not required to use it until November 1, 2023. Employers may continue to use the prior edition of the Form I-9, dated October 21, 2019, through October 31, 2023.
The Form I-9 is used to verify the identity and employment authorization of individuals hired for employment in the United States.
The revised Form I-9 includes the following changes:
- Combines Sections 1 and 2 into a single-sided sheet
- Ensures the form can be completed on tablets and mobile devices
- Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary
- Moves Section 3, Reverification and Rehire, to a standalone supplement that employers can print if, or when, rehire occurs or reverification is required
- Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation
- Adds a check for E-Verify[1] employers to indicate when they have remotely examined I-9 documents
- Reduces Form I-9 instructions from 15 pages to 8 pages
- Includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a Department of Homeland Security (DHS)-authorized alternative procedure rather than via physical examination (more details on this “alternative procedure” below)
End of Form I-9 COVID-19 Temporary Flexibilities
On May 4, 2023, the U.S. Immigration and Customs Enforcement (ICE) announced the Form I-9 COVID-19 temporary flexibilities would end on July 31, 2023. The I-9 COVID-19 temporary flexibilities period lasted from March 20, 2020 to July 31, 2023.
These temporary COVID-19 flexibilities permitted employers with employees to temporarily defer physical examination of employees’ identity and employment authorization documents. Instead, employers were allowed to examine the employees’ documents remotely (e.g., over video link, fax, or email) and enter “COVID-19” as the reason for the physical examination delay in the Section 2 Additional Information field once physical inspection took place after normal operations resumed. Once the employees’ documents were physically examined, the employer would add “documents physically examined” with the date of examination to the Section 2 Additional Information field on the Form I-9, or in Section 3, as appropriate.
Employers not enrolled in E-Verify during the COVID-19 temporary flexibilities period must satisfy the physical document examination requirement by August 30, 2023. This includes performing all required physical examinations of identity and employment eligibility documents for those employees hired on or after March 20, 2020, and who have only received a virtual or remote examination under the COVID-19 temporary flexibilities.
Alternative Procedure Overview
The release of the revised Form I-9 coincides with the August 1, 2023 effective date of an “alternative procedure” of remote examination of Form I-9 documents for employers enrolled in E-Verify during the COVID-19 temporary flexibilities period. This alternative procedure of remote examination is available to certain E-Verify employers in lieu of the requirement to physically inspect Form I-9 documents in the presence of the employee presenting the documents.
This new alternative procedure announced by the DHS in a final rule published on July 25, 2023, is optional for employers and available beginning August 1, 2023.
In order to use the new alternative procedure to conduct a remote inspection of an employee’s identity and employment authorization documents, employers must be participating and in good standing in E-Verify.
Employers are in good standing in E-Verify if they:
- Enrolled in E-Verify with respect to all hiring sites in the United States that will use the alternative procure to examine documents remotely
- Are 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
- Continue to be a participant in good standing at any time during which the employer uses the alternative procedure
The alternative procedure is available to E-Verify employers for new employees hired on or after August 1, 2023.
If an employer chooses to use the alternative procedure for new employees, the employer must do so consistently for all employees at a hiring site. An employer may choose to use 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 at a hiring site. Employers are prohibited from adopting different document examination procedures for employees for a discriminatory purpose or based on a protected characteristic such as citizenship, immigration status, or national origin.
Employees who are unable or unwilling to submit documentation using the alternative procedure must be allowed to submit documentation for physical examination.
Alternative Procedure Steps
Within three business days of the employee’s first day of employment, a qualified employer (or an authorized representative acting on an employer’s behalf) who uses the alternative procedure must complete the following steps:
- 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;
- Conduct a live video interaction with the employee presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the employee. 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;
- Check a box on the revised Form I–9, indicating that an alternative procedure was used to examine documentation to complete Section 2 or for recertification;
For the period through October 31, 2023, if the employer uses the current 2019 version of the Form I-9, the employer must write “alternative procedure” in the Additional Information field in Section 2.
- Retain a clear and legible copy of the documentation (front and back if the documentation is two-sided), in accordance with applicable regulations; and
- In the event of a government audit or investigation, make available the clear and legible copies of the I-9 documents presented by the employee
DHS has determined that the specific measures required under this alternative procedure for remote inspection of Form I-9 documents offers an equivalent level of security as compared to physical document examination, and mitigates the risk of undetected fraud or error and labor exploitation.
Employer Takeaways
Employers are advised to be aware of these Form I-9 updates and take action to update their Form I-9 processes, as appropriate. This could include ensuring their new hire onboarding processes are updated to account for the use of the revised Form I-9 by November 1, 2023, and the alternative procedure to inspect Form I-9 documents remotely, as applicable.
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[1] E-Verify is an Internet-based system that compares information entered by an employer from an employee’s Form I-9 to records available to the DHS and the Social Security Administration to confirm employment eligibility.
[2] Employers must retain and store the Form I-9 for three years after the date of hire, or for one year after employment ends, whichever is later.
