Employer PSA: Form I-9 Changes Coming Soon

Stop. Read. Update your calendar.

Changes have been made by the U.S. Citizenship and Immigration Services (USCIS) to Form I-9 that is used in the regular course of business when hiring employees, and to the Form I-9 examination process.  

Starting August 1, 2023, employers will no longer be able to take advantage of the COVID-19 rules, which allowed employers to examine Form I-9 documents remotely. Instead, employers will be required to return to in-person examination of Form I-9 documents unless employers follow a new procedure authorized by DHS. 

In order to participate in the remote examination of Form I-9 documents under the DHS’ new alternative procedure, employers must:

1. Enroll, or already have been enrolled, in the E-Verify program and be in good standing;^[1]

2. Create an E-Verify case if the employee is a new hire;

3. Examine, within three business days of an employee’s first day of employment, the employee’s identity and employment authorization documentation (front and back, if it is a two-sided document) of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;

4. Conduct a live video interaction with the individual presenting all documentation to ensure that it reasonably appears to be genuine and related to the individual. The employee must first transmit a copy of the document(s) to the employer (per step 3 above) and then present the same document(s) during the live video interaction. 

5. Indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable;

6. Retain clear and legible copies of the documentation (front and back, if it is a two-sided document); and

7.  In the event of a Form I-9 audit or investigation, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process. 

This procedure is an alternative to the current in-person requirements. Employers who do not use E-Verify will be required to return to the current in-person requirements of examining Form I-9 documents. 

Employers who elect to use this new alternative procedure must complete an E-Verify training as part of the E-Verify enrollment process. An employer not currently enrolled in E-Verify may do so and begin to utilize the alternative procedure after August 1, 2023, provided that all other requirements are also met.

The alternative procedure must be used consistently for all employees at a given worksite. However, a qualified employer in E-Verify, meaning an employer in good standing, may choose to offer the alternative method for remote hires only, but only if the employer does so in a nondiscriminatory manner.

Employer Obligations After COVID-19 Flexibilities End 

Employers who examined Form I-9 documentations remotely when the COVID-19 flexibilities were in place may rely upon the remote verification process to satisfy the physical examination requirement if the employer was enrolled in E-Verify at the time of making the examination. More specifically, the employer must have been enrolled in E-Verify, created an E-Verify case for the employee, and performed remote inspection between March 20, 2020, and July 31, 2023. 

If an employer was not enrolled in E-Verify at the time such remote inspection was performed, the employer is now required to go back and conduct a physical, in-person examination of all Form I-9 documents for employees hired between March 20, 2020 and July 31, 2023. This physical examination must be completed by August 30, 2023. This is a heavy burden for employers.  Therefore, employers must immediately begin to conduct physical, in-person examinations to ensure compliance with the August 30, 2023 deadline. 

Notable Form I-9 Changes

Starting November 1, 2023, all employers must use the new version of Form I-9, Employment Eligibility Verification. This new form will become available to download on August 1, 2023, which is the date employers should begin using the form. 

The new Form I-9 is much more user friendly, allowing users to complete the form on an electronic device, such as a tablet or smartphone. Furthermore, the length of the form has been reduced to a single-sided sheet, and the number of instruction pages has been condensed from a whopping fifteen pages to eight pages.

The Lists of Acceptable Documents page has been revised by USCIS to include acceptable receipt notices and also to provide links to guidance on when certain Employment Authorization Documents (EADs) may be automatically extended.

The form has also added a box allowing eligible employers to indicate they examined the employee's Form I-9 documentation under a DHS-authorized alternative procedure rather than via physical examination.  

Retention

The retention period for Form I-9 remains the same and is three years after the date of hire, or for one year after employment ends, whichever is later.

Be certain to mark your calendar to make sure your business stays in compliance with the revised version of Form I-9 and examination process for Form I-9, which no longer allows for remote examination unless employers use E-Verify and follow the procedures identified above.