NEW FORM I-9

On July 25, 2023, the U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) announced a new version of the Form I-9 Employment Eligibility Verification Form. The new version of the Form (version date (“Rev. 08/01/23”) contains many significant changes and improvements and will be available for download and use beginning August 1, 2023. Although USCIS will provide a brief grace period allowing employers to continue using the prior version of the Form I-9 (Rev. 10/21/19) through October 31, 2023, beginning November 1, 2023, all employers must use the new I-9 Form for all new hires.

Significant changes on the new Form I-9 include:

• Reduced the size of the Form from two pages to one. Sections 1 and 2 of the Form are now both on the front page while the Preparer/Translator Certification and Reverification sections are now on separate, standalone supplements. No fields from the previous Form were removed. Rather, multiple fields were merged into fewer fields when possible.
• Changed immigration status question option “alien authorized to work” in Section 1 to “noncitizen authorized to work.” Also, the difference between “noncitizen national” and “noncitizen authorized to work” is now clarified.
• The form can now be filled out on tablets and mobile devices.
• Removed certain features to ensure the form can be downloaded more easily. This also removes the requirement to enter N/A in certain fields.
• Updated the notice at the top of the Form I–9 that explains how to avoid discrimination in the Form I–9 process.
• Revised 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.
• Added a box that eligible employers must check if the employee’s Form I–9 documentation was examined remotely under the new DHS-authorized alternative procedure described in detail below rather than the standard physical examination.

USCIS also updated the following in the accompanying Form I–9 instructions:

• Reduced the length of instructions from 15 pages to 8 pages.
• Added definitions of key actors in the Form I–9 process.
• Streamlined the steps each actor takes to complete their section of the Form.
• Added instructions for the use of the new checkbox for employers who choose to examine Form I–9 documentation under an alternative procedure, as described in detail below.
• Removed the abbreviations charts and relocated them to the M–274, Handbook for Employers: Guidance for Completing Form I–9.

For informational purposes only, a preview of the new Form I-9 is available here, but employers must wait until August 1 to download and begin using the new Form which will be available from USCIS’ website.

NEW OPTIONAL ALTERNATIVE TO PHYSICAL DOCUMENT EXAMINATION AND REVIEW FOR QUALIFIED EMPLOYERS ENROLLED IN E-VERIFY

In a separate notice, DHS and U.S. Immigration and Customs Enforcement (ICE) announced the implementation of a final rule that will allow “qualified” employers to use an optional alternative (electronic, remote, etc.) procedure for the examination of identity and employment authorization documents in lieu of in-person physical document examination beginning August 1, 2023.

Since the Form I-9 was first implemented in 1986, employers (or their authorized agents and representatives) have been required to review identification and work authorization documentation presented by new hires within three business days after the first day of employment. During the COVID-19 pandemic, DHS and ICE temporarily relaxed the in-person review requirements for certain qualifying employers. At the same time, DHS published a proposed rule to authorize remote document review procedures on an ongoing basis that will now go into effect.

With the new final rule, “qualified employers” may choose to utilize the alternative document review procedures beginning August 1, 2023, only under the following conditions:

1. The employer must be enrolled and in good standing with E-Verify. (As of August 3, 2023, DHS is contemplating expanding the program to employers not enrolled in E-Verify, but for now, the program is limited to those that are enrolled and in good standing.)
2. The employer must be enrolled in E-Verify with respect to all hiring sites in the United States that use the alternative procedure.
3. The employer must be 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 U.S. and continue to be a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure.
4. If an employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must EITHER do so consistently for all employees at that site, OR offer the alternative procedure only for remote hires but continue to apply physical examination procedures to all other employees who work onsite or in a hybrid capacity, and only so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin.
5. The employer must retain a clear and legible copy of ALL documents presented by the employee seeking to establish identity and employment eligibility for the Form I-9.

Instructions for Remote/Electronic Review Under the Alternative Procedure:

1. Per normal, within three business days of an employee’s first day of employment, have the employee provide electronic copies (still photograph, scan, etc.) of the relevant Form I-9 document(s) (front and back, if the document is two-sided).
2. Within the same three days, the employer must examine the electronic copies of Form I–9 documents (or an acceptable receipt), ensure that they are acceptable and meet current I-9 document requirements (valid and unexpired), and ensure that the documentation presented “reasonably appears to be genuine” per standard I-9 requirements.
3. The employer must then 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 hold up and present both sides of the same document(s) that was submitted electronically.
4. The employer must then complete Section 2 of the I-9 per normal. The employer must also indicate on the Form I–9, by completing the corresponding box on the new I-9 (or by adding a notation on the 10/21/2019 edition during the 60-day grace period described above), that an alternative procedure was used to examine documentation to complete Section 2.
5. The employer’s representative who both reviewed the electronic copy and conducted the live video review must then sign and date Section 2 of the I-9 after completing the review within the same three business days.
6. The employer must then retain, consistent with applicable regulations, a clear and legible copy of the documentation presented (front and back if the documentation is two-sided).
7. Finally, in the event of a Form I–9 audit or investigation by a relevant federal government official, the employer must make available 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.

Additional Questions and Answers Regarding the New Alternative Procedure:

Q1: May a qualified employer continue to examine documents physically instead of using the alternative procedure?

A1: Yes. As explained in the Final Rule, use of this alternative procedure is entirely optional. Qualified employers may choose to implement the alternative procedure per USCIS guidance or continue to physically examine all I-9 documentation in person per normal.

Q2: May a qualified employer offer the alternative procedure to only some employees?

A2: Yes, but only under very limited conditions. Qualified employers need not utilize the new alternative procedure at all. Per USCIS guidance, qualified employers that do choose to utilize the new procedure should normally do so for all new hires at an E-Verify hiring site.  However, a qualified employer may also choose to utilize the n alternative procedure only for remote hires. In that case, the employer may continue to use in-person document review for all other employees per standard procedure. If a qualified employer chooses to implement the new alternative procedure only for new hires, it must avoid doing so for discriminatory purposes. Per USCIS guidance: “ Under no circumstances can employers unlawfully discriminate, such as by deciding who is eligible for the alternative procedure based on a protected characteristic”.

Q3: May qualified employers utilize the alternative procedure if the employee objects?

A3: No, USCIS guidance states that if an employee is unable or unwilling to participate in the alternative procedure, they should be allowed to submit their documentation for in-person review per standard procedure.

Q4: Is the new alternative procedure available to all employers?

A4: No. At this time, USCIS is only making the new alternative procedure available to employers who are enrolled and in good standing with E-Verify. On August 3, 2023, USCIS announced a separate plan to conduct a preliminary information-gathering pilot program for employers not enrolled in E-Verify, but there is no word on whether or when it might expand the alternative procedure to all employers. USCIS reserves the right to extend, modify, or cancel the alternative procedure at any time.

Q5: Are there any different or additional I-9 requirements for employers who utilize the new alternative procedure?

A5: Yes, as explained above, qualified employers who utilize the new alternative procedure must: 1) indicate on the Form I-9 by checking a box on the new Form (or by making a notation on the current Form during the limited grace period) that they used the alternative procedure to examine the employee’s documents, and 2) qualified employers who utilize the alternative procedure must prepare and retain complete, clear and legible copies of ALL documents presented by the employee, rather than only List A documents per standard E-Verify procedure. Please note however that these two additional requirements only apply to employees whose documents were reviewed under the alternative procedure.

Q6: Is the standard of review any different when utilizing the alternative procedure?

A6: No, the standard of review is the same. Only the method of document review is different. Regardless of whether an employer utilizes the standard procedure or the alternative procedure, the authorized individual reviewing the documentation on behalf of the employer must determine whether the documentation “reasonably appears genuine on its face and relates to the person presenting it.” When utilizing the alternative procedure, the qualified employer is required to both review the copy of the document(s) sent electronically by the employee and review the same document(s) via live video interaction with the employee to ensure that the documents appear genuine and reasonably relate to the person presenting them.

Q7: Should employers utilize the new alternative procedure?

A7: There are pros and cons to using the alternative procedure which employers should discuss with their employment and/or immigration counsel before utilizing the procedure. On the one hand, the process makes it easier for qualified employers to review the documentation of new remote employees without having to arrange for the new hire to appear in person or having to engage the services of a third-party employer agent/representative to review and complete the I-9 in person on behalf of the employer. On the other hand, the employer must first be enrolled in E-Verify and there are additional I-9 completion and document retention requirements beyond what is already required by the E-Verify Memorandum of Understanding. Further, employers must ensure that the alternative procedure is utilized consistently and never in a discriminatory manner as described above. Finally, although DHS is now authorizing remote document review under certain circumstances, the Agency still recommends in-person document review when possible because: “physically examining identity and employment authorization documents offers important security benefits to enable employers to assess if the documents reasonably appear to be genuine and to relate to the individual who presents them. Employers who physically examine documents can touch and more clearly see identification security features like holograms and microprinting, as well as the card stock on which certain documents are printed.” 

A FEW HELPFUL REMINDERS REGARDING I-9 COMPLIANCE GENERALLY

• Always complete I-9s for new hires correctly, completely, and in a timely manner. The employee must complete, sign and date Section 1 of the I-9 by no later than their first day of employment. The employer must review the offered documents as well as complete, sign, and date Section 2 by no later than the third date of employment (if the employee starts work on Monday, Section 1 must be completed by Monday and Section 2 by Thursday).
• With the exception of employers who are enrolled in E-Verify (and now those who utilize the alternative procedure described above), there is no obligation to retain copies of the documents presented by employees for I-9 purposes. There are valid arguments for and against retaining copies. Employers should consult with their employment and/or immigration counsel regarding whether to retain copies. Whether copies of documents are retained or not, employers should ensure their policies and practices are implemented uniformly and consistently for all employees without regard to nationality, immigration status, or any other protected characteristic.
• Normally, employees may only present an original document that is valid and unexpired. A receipt in lieu of the original document is only acceptable if the original document was lost, stolen, or destroyed, or if one of the exceptions outlined by USCIS.
• Generally, employers do not need to re-verify an employee’s work authorization, even if the documents the employee presented have an expiration date. Documents including driver’s license, U.S. passport, and Permanent Resident Cards (including cards that are only valid for either 2 years or 10), should not be re-verified. Only temporary employment authorization documents issued to non-immigrants either in the form of temporary EAD (I-766) or I-94 evidencing a specific temporary work-authorized non-immigrant status are subject to re-verification. If an employee presents such a document for I-9 purposes, consider scheduling a reminder to re-verify their work authorization before the document expires.
• Consider training a specific individual or individuals to handle the completion of I-9 forms and centralize this process.
• Consider conducting an annual audit of I-9 forms. With the COVID-19 public health emergency formally declared over, most employees back in the workplace, and DHS I-9 audits and enforcement penalties on the rise, now is a great time to review your company’s I-9s and ensure they are in proper order. Engage experienced employment/immigration counsel before making any corrections to deficient I-9s to avoid making unauthorized changes to I-9s that could result in further violations and penalties.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.