On August 1, 2023, U.S. Citizenship and Immigration Services (USCIS) released a revised Employment Eligibility Verification form, commonly referred to as the I-9 form. To download a copy of the new I-9 form click here. While the new I-9 form may be used immediately, employers have until October 31st to implement changes necessary for the use of the new I-9 form. After October 31, 2023, employers who fail to use the new I-9 form will be subject to penalties enforced by U.S. Immigration and Customs Enforcement and the Department of Justice. Employers should not ask current employees who have a properly completed I-9 form on file to complete the new I-9 form.
Changes to the I-9 form make the form much more user friendly. Immediately noticeable is that Section 1, completed by the employee, and Section 2, completed by the employer, have been reduced to a single sheet. The Preparer and/or Translator Certification now appears on a separate Supplement A that employers can use when necessary. Similarly, Reverification and Rehire, formerly Section 3, appears on a separate Supplement B that employers can use when necessary. Separating the Preparer and/or Translator Certification and Reverification and Rehire from Sections 1 and Section 2 should significantly reduce unnecessary completion and stray marks and signatures.
Also, with the new I-9 form, fields may be left blank when they do not apply or are not appropriate. This includes in Section 1, for which employers are subject to fines for failing to ensure that an employee entered “N/A” in an inapplicable Section 1 field on prior versions of the I-9 form. Another helpful revision is the identification on the Lists of Acceptable Documents page of acceptable receipts which may be presented in lieu of certain documents for a temporary period.
In addition to the release of a new I-9 form, USCIS announced a final rule permitting an optional alternative procedure to the physical examination of documents presented by employees to establish their identity and employment authorization. Starting August 1, 2023, employers who are participants in good standing in E-Verify have the option of conducting a “remote” review of an employee’s documents. The “remote” review procedure requires that employers (or a third party on the employer’s behalf):
- Examine the front and back of the document(s) (one document from List A or one document from both List B and List C) transmitted by the employee to ensure that the document(s) presented reasonably appears to be genuine;
- Conduct a live video interaction with the employee, who presents during the live video interaction the same document(s) they transmitted to ensure that the document(s) relates to the employee;
- Indicate on the I-9 form by completing the corresponding box that an alternative procedure was used to examine the document(s). This is done by marking the checkbox found under Additional Information in Section 2 on the new I-9 form and by writing “Alternative Procedure” in the Additional Information field on the existing I-9 form (issuance date of October 21, 2019); and
- Retain a clear and legible copy of the document(s) submitted by the employee (front and back sides if the document is two-sided).
Employers who are participants in good standing in E-Verify may, but are not required to, use this alternative document review procedure; however, if an E-Verify employer chooses to offer the alternative procedure to some employees at a hiring site, it must do so for all employees at that site.
USCIS previously announced that employers who performed a remote examination of an employee’s document(s) under the COVID-19 flexibilities between March 20, 2020 and July 31, 2023, are required to physically examine the employee’s I-9 documents in the employee’s physical presence no later than August 31, 2023. With the announcement of the final rule, employers enrolled in E-Verify are not required to complete the physical examination if they (1) were enrolled in E-Verify at the time they performed the remote examination; (2) created an E-Verify case for that employee (except for reverification); and (3) performed the remote examination between March 20, 2022 and July 31, 2023. Employers who conducted remote examinations under the COVID-19 flexibilities and who do not meet these requirements must complete the physical examination of I-9 documents (and notate the I-9 form accordingly) no later than August 30, 2023, as previously announced.
If you have questions regarding your I-9 form obligations, please contact a member of Hahn Loeser’s Labor and Employment Practice Group.
