Question: I heard the federal government just updated its Form I-9. Do I need to immediately start using the updated Form I-9 for new hires? What is new about Form I-9?
Answer: On July 21, 2023, the United States Citizenship and Immigration Services (USCIS) announced a new version of Form I-9, which employers should use starting August 1, 2023. The old version of Form I-9 will become obsolete and should not be used after October 31, 2023.
The new version of Form I-9 is intended to make it easier for employers to verify the identity and employment authorization of their employees. USCIS made both the Form I-9 and its instruction sheet shorter and easier to comprehend. One significant change in the I-9 is the optional checkbox to indicate that an employee’s Form I-9 documentation was examined using a DHS-authorized alternative procedure. As an alternative to the in-person physical document examination requirements of the past, employers may now examine the Form I-9 documents remotely. To do so, employers must:
- Be enrolled in E-Verify,
- Examine and retain copies of all documents,
- Conduct a live video interaction with the employee after the employee transmits a copy of the employment authorization documents, and
- Create an E-Verify case if the employee is a new hire.
Employers who are not currently enrolled in E-Verify may enroll and begin to utilize the alternative virtual verification procedure after August 1, 2023.
Starting on August 1, 2023, employers may download the new Form I-9 from the USCIS website at www.uscis.gov/i-9. Employers can order the paper Form I-9 at www.uscis.gov/forms/forms-bymail. For more information, the public can contact the USCIS Contact Center at 800-375-5283 or visit USCIS’ I-9 Central webpage at www.uscis.gov/i-9central.
Also, the Department of Homeland Security (DHS) recently announced that the temporary rules allowing remote examination of Form I-9 documents (referred to as the COVID-19 flexibilities) will end on July 31, 2023. Employers that followed the temporary COVID-19 flexibility rules and did not perform an in-person review of the actual employment verification documentation presented by the employee will be required to now perform a reverification for all such employees by August 30, 2023. Employers who were participating in E-Verify and created a case for employees whose documents were examined remotely during COVID-19 flexibility period of March 20, 2020 to July 31, 2023 may choose to use the new remote verification procedure explained above to satisfy the reverification requirement. However, employers who used the COVID-19 flexibility rules to remotely verify employment eligibility and who were not enrolled in E-Verify must complete an in-person reverification by physical examination of employment eligibility documents by August 30, 2023.
In an announcement the DHS stated “If an employer is otherwise compliant with the law and regulation – and had followed the COVID-19 flexibility guidance – U.S. Immigration and Customs Enforcement (ICE) will generally not focus its limited enforcement resources on Form I-9 verification violations for failing to complete physical document examination by August 30, 2023, particularly where the employer can show that it has taken timely steps to complete physical document examination within a reasonable period of time.” However, employers may still be subject to significant penalties for each reverification case that is not completed by the August 30 deadline.
Employers who need guidance on compliance with these changes should contact their employment counsel.