There are several important changes to the I-9 process that all employers should be aware of. The immigration team at Nilan Johnson Lewis has prepared the following summary below.
DHS TO PUBLISH NEW FORM I-9
On August 1, 2023, U.S. Citizenship and Immigration Services will publish a new version of Form I-9, Employment Eligibility Verification (edition date 08/01/23) on www.uscis.gov. The immigration team at Nilan Johnson Lewis welcomes these changes, which include the following takeaways:
- Sections 1 and 2 will be reduced to a single-sided sheet.
- The new form is designed to be a fillable form on tablets and mobile devices.
- The Section 1 Preparer/Translator Certification area will be moved to a separate, standalone supplement that employers can provide to employees when necessary.
- Section 3, Reverification and Rehire, will be a standalone supplement that employers can print if or when rehire occurs or reverification is required.
- There will be an updated Lists of Acceptable Documents Page that will include additional acceptable documents as well as guidance and links to information on automatic extensions of employment authorization documentation.
- Form instructions will be reduced from 15 pages to 8 pages.
- The new form includes a checkbox that allows E-Verify employers to indicate they examined Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination (see below).
NOTE: Employers can use the current Form I-9 (edition date 10/21/19) through October 31, 2023. Starting November 1, 2023, all employers must use the new Form I-9.
DHS WILL ALLOW REMOTE EXAMINATION OF I-9 DOCUMENTS FOR E-VERIFY EMPLOYERS
On July 25, 2023, DHS published a document in the Federal Register describing and authorizing employers enrolled in E-Verify the option to remotely examine their employees’ identity and employment authorization documents under a DHS-authorized alternative procedure. DHS has stated that this option will be allowed indefinitely. While this is welcome news for many employers, this option does not apply to all employers. To help employers understand the alternative procedure, we have prepared the questions below.
Which employers are qualified to participate in the remote examination of Form I-9 documents under the DHS-authorized alternative procedure?
Employers who are participants in good standing in E-Verify are qualified to remotely examine I-9 documents.
What does the remote examination process entail?
Within three business days of an employee’s first day of employment, a qualified employer (or an authorized representative acting on such an employer’s behalf, such as a third-party vendor) who chooses to use the alternative procedure must:
- 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 individual presenting the document(s) to ensure that the documentation 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 1 above) and then present the same document(s) during the live video interaction;
- 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.
- Retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back if the documentation is two-sided); and
- In the event of a Form I-9 audit or investigation by a relevant federal government official, 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.
Is remote examination of I-9 documents required?
No. Use of the alternative procedure is entirely optional. Qualified employers can continue to physically examine documents for the Form I-9. If a qualified employer chooses to offer the alternative procedure to some employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site. A qualified employer, however, may choose to offer 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, so long as the employer does not adopt that practice for a discriminatory purpose or treat employees differently based on a protected characteristic.
Can qualified employers that were enrolled in E-Verify during the COVID-19 temporary flexibilities use this alternative procedure to satisfy the requirement to physically examine Form I-9 documentation that had been examined remotely under the COVID-19 flexibilities?
Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020 to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023 to satisfy the physical document examination requirement by August 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by August 30, 2023.
If you are an employer with questions about the new I-9 form and the alternative procedures to review identity and employment authorization documents remotely, please contact the Immigration Team with Nilan Johnson Lewis.