On July 21, 2023, the Department of Homeland Security (DHS) announced a final rule, which will be officially published on July 25, 2023, that will provide eligible employers filling out the Employment Eligibility Verification Form I-9 an optional alternative to the in-person physical document examination method that employers have followed as part of the Form I-9 process. DHS explained, “This rule responds to lessons learned during the COVID-19 pandemic, which demonstrated the substantial practical benefits of an optional alternative to the physical documentation examination procedures required by the employment eligibility verification regulations.”
Only employers who are enrolled, and participating in good standing, in E-Verify, will be eligible to use this optional alternative I-9 process.
In addition to the requirement that employers use E-Verify, the optional alternative verification process requires the following to occur within three business days of the first day of employment:
- The employee must transmit a front and back (if the document is two-sided) copy of the identity and employment authorization documentation to the employer;
- The employer must examine the copies of the Form I-9 documentation or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
- The employer then must conduct a live video interaction with the individual who must present the same documentation to ensure that the documentation reasonably appears to be genuine and related to the individual;
- The employer will then indicate on the Form I-9, by completing the corresponding box (that will be on the updated Form I-9), that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable; and
- The employer must retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back, if the documentation is two-sided).
In the event of a Form I-9 audit or investigation by a relevant federal government official, the employer must 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.
The new rule also provides relief for certain employers who completed I-9 forms virtually during the COVID-19 pandemic. Employers who were participating in E-Verify and created cases for employees whose documents were examined virtually during COVID-19 flexibilities period (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 should not create a new case in E-Verify. This accommodation is available to employers who were participating in E-Verify during the COVID-19 pandemic. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by August 30, 2023.
A qualified employer does not need to use the alternative procedure, but if a qualified employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site, without discrimination. However, a qualified employer 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 such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic, i.e., their citizenship, immigration status, or national origin. See 8 U.S.C. 1324b(a)(1).22 Under no circumstances can employers unlawfully discriminate, such as by deciding who is eligible for the alternative procedure based on a protected characteristic.
Employers must adopt the virtual I-9 process in a non-discriminatory manner. Qualified employers must retain clear and legible copies of all documentation presented by the employee seeking to establish identity and employment eligibility for the Form I-9 through the alternate procedures. On the other hand, E-Verify employers who do not apply the virtual I-9 procedures are only required to retain a photocopy of the required documents with an employee’s Form I-9.
New Form I-9 and Form Instructions:
In addition to the final rule on optional alternatives to in-person document examination, DHS also announced a new version of Form I-9, Employment Eligibility Form, which will be officially published on July 25, 2023, to be consistent with DHS final rule. The new form introduces certain changes including a checkbox to indicate that an employee’s Form I-9 documentation was examined using a DHS-authorized alternative procedure.
The new version of Form I-9 [with a version date of “(Rev. 08/01/23)”] will be available for use from August 1, 2023. Employers may use the current version of Form I-9 (Rev. 10/21/19) until October 31, 2023. After October 31, 2023, the prior version of Form I-9 will be obsolete and no longer valid for use. Beginning November 1, 2023, employers who fail to use Form I-9 (Rev. 08/01/23) may be subject to all applicable penalties.
The new Form I-9 will contain two sections and two supplements:
- Section 1 of the form continues to collect identifying information about the new hire and requires the employee to attest whether they are a U.S. citizen, noncitizen national, lawful permanent resident, or noncitizen authorized to work in the United States.
- Section 2 of the form continues to collect identifying information about the employer and information regarding the employee’s identity and employment authorization.
- Supplement A, Preparer and/or Translator Certification for Section 1 (formerly at the bottom of Section 1), is completed when employees have preparers and/or translators assist them in completing Section 1 of Form I-9.
- Supplement B, Reverification and Rehire (formerly Section 3), is primarily used to verify the continued employment authorization of the employee and for other changes.
U.S. Citizenship and Immigration Services (USCIS) will implement certain changes on the newly updated Form I-9 and form instructions, including the following:
Changes to the Actual Form I-9:
- Reduces Sections 1 and 2 to a single-sided sheet. While the new form does not remove any previous fields, it merges multiple fields into fewer fields when possible.
- Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement (Supplement A).
- Moves the Section 3 Reverification and Rehire area to a separate, standalone supplement (Supplement B) for use in a rehire or reverification situation.
- Removes use of “alien authorized to work” in Section 1 and replaced it with “noncitizen authorized to work.” USCIS has also clarified the difference between “noncitizen national” and “noncitizen authorized to work.”
- Ensures the form can be filled out on tablets and mobile devices.
- Removes certain features to ensure the form can be downloaded easily. This also removes the requirement to enter “N/A” in certain fields.
- Updates the notice at the top of the Form I-9 that explains how to avoid discrimination in the Form I-9 process.
- 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.
- Adds a box that eligible employers must check if the employee’s Form I-9 documentation was examined under a DHS-authorized alternative procedure rather than by physical examination.
Changes to Form I-9 Instructions:
- Reduces length of instructions from 15 pages to 8 pages.
- Adds definitions of key actors in the Form I-9 process.
- Streamlines the steps each actor takes to complete their section of the form.
- Adds instructions for use of the new checkbox for employers who choose to examine Form I-9 documentation under an alternative procedure.
- Removes the abbreviations charts and relocates them to the M-274, Handbook for Employers: Guidance for Completing Form I-9.
DHS further clarifies that, employers do not need to complete the new Form I-9 (Rev. 08/01/23) for current employees who already have a properly completed Form I-9 on file, unless reverification applies after October 31, 2023.
Starting on August 1, 2023, employers may download the new Form I-9 (Rev. 08/01/23) from the USCIS website.
If you have any questions about Form I-9 or E-Verify processes or compliance, please reach out to your Jackson Lewis attorney. We will continue to monitor this situation and provide updates as they become available.