Reminder: Revised Form I-9 Effective November 1, 2023

Effective November 1, 2023, employers will be required to utilize the revised Form I-9 published on uscis.gov on August 1,2023.

New Form I-9

The new Form I-9 features several updates including the following per USCIS: 

• “Reduces Sections 1 and 2 to a single-sided sheet; 
• Is designed to be a fillable form 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; 
• Reduces Form instructions from 15 pages to 8 pages; and 
• Includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination.” 
  
  
  

Optional Alternative Form I-9 For Employers Using E-Verify

On July 25, 2023, the Department of Homeland Security issued the following rule: Optional Alternative 1 to the Physical Document Examination Associated With Employment Eligibility Verification (Form I-9). This rule establishes an optional alternative procedure to the in-person physical examination of the documentation presented by persons during the Form I-9 completion and employment eligibility verification process. Employers electing to utilize this alternative document examination procedure must be participants in good standing in E-Verify and within three (3) business days of an employee’s first day of employment must:

1. Examine copies of Form I-9 documents or an acceptable receipt to ensure that the documents presented reasonably appear to be genuine; 
2. Conduct a live video interaction with the employee presenting the documentation to ensure that such documentation reasonably appears to be genuine and related to that particular employee. For this step, an employee is required to electronically provide a copy of any documentation which s/he intends to present for remote inspection to his/her prospective employer prior to such virtual interaction;  
3. Indicate on Form I-9 in the requisite box that that the employer utilized the alternative procedure to complete Section 2 or for reverification, as applicable;  
4. Retain a clear and legible copy of the documentation consistent with applicable regulations; and  
5. In the event of a Form I-9 audit or investigation by a relevant federal government official, make available clear and legible copies of the identity and employment authorization documentation presented by the employee in connection with the employment eligibility process.  

As the alternative procedure is optional, employers are not required to utilize it. However, should they decide to utilize it at an E-Verify site, employers must do so for all employees at that site. Employers may, however, choose to limit their use of the alternative procedure to remote employees, while continuing to conduct in person examinations for those employees who work onsite or work a hybrid schedule of remote and in person work. Notwithstanding this flexibility, employers are prohibited from adopting practices for a discriminatory purpose or treating employees differently based on protected characteristics in their use of the alternative procedure.   

Qualified employers were eligible to begin using the alternative procedure on August 1, 2023, for all employees hired after this effective date. Employers not enrolled in E-Verify as of August 1, 2023, must first become a participant in good standing in E-Verify by completing the enrollment and training processes before they can take advantage of the alternative procedure.  

As reported in our Compliance Alert, the COVID-19 Form I-9 remote flexibilities expired on July 31, 2023, and employers had until August 30, 2023, to physically inspect all documents that had been remotely examined during the flexibilities period. However, under the new rule promulgated by the Department of Homeland Security, qualified employers were permitted to use the alternative procedure to satisfy this requirement by the August 30, 2023, deadline if certain conditions were met: 

1. The employer was enrolled in E-Verify at the time of remote examination for the employee hired during the flexibilities period; 
2. The employer created an E-Verify case for that employee (except In the case of reverification); and  
3. The employer performed the remote inspection between March 20, 2020, and July 31, 2023.  

For employers who utilized the alternative procedure to satisfy their document verification obligations following expiration of the COVID-19 remote flexibilities, they were required to complete an additional step in updating the Form I-9. Employers were required to notate in the Additional Information field under Section 2 or Section 3, as appropriate, the words “alternative procedure” with the date of examination.