After much anticipation, U.S. Citizenship and Immigration Services (USCIS) has published a new version of the I-9 Form that is available for use by employers today. The new version of the form offers several improvements, one of which is a checkbox allowing qualifying employers to indicate the use of the Department of Homeland Security’s (DHS) brand new “alternative procedure” for verifying I-9 documents remotely. Unlike other employment law updates that may only apply to certain employers based on size, jurisdiction, or industry, the I-9 is applicable to every single employer.1 Below is an outline on the background of the I-9, changes in effect, proposals being considered, and important upcoming deadlines.
Immigration law requires employees to present documentation establishing proof of identity and proof of employment authorization.2 Using the I-9 form, the employer attests to having physically examined those documents, and the individual attests to their citizenship or immigration status and the genuineness of the documents presented.3
Employers are not required to submit the executed I-9 forms, but they are required to retain copies and present them within three business days in the event of a DHS/Immigration and Customs Enforcement (ICE) audit.4 Employers are required to maintain copies of the I-9 form for all active employees hired after November 6, 1986. For terminated employees, the form must be retained for: 1) three years after the date of hire; or 2) one year after the date of termination – whichever is later.
The most recent version of the Form I-9 (Rev. 10/21/2019) was set to expire on October 31, 2022, but it remains valid through October 31, 2023. The new version of the Form released August 1, 2023 (Rev. 8/31/2023) replaces this prior version. The I-9 regulations have always required that the employee’s documentation be physically examined; however, in March 2020, at the onset of the COVID-19 pandemic, DHS/ICE announced that it was relaxing the physical inspection requirements for employers who had shut down their in-office operations completely due to COVID-19. In April 2021, the flexibility was further expanded to cover all employees who were no longer coming into the office on a consistent or predictable basis due to COVID-19, even if the employer had otherwise resumed in-office operations. Employers were advised to enter “COVID-19” on the Form I-9 as the reason for the physical inspection delay. Subsequent guidance from DHS/ICE explained that employers would be required to physically inspect the documentation that had been reviewed remotely once employees were back in the office on a consistent or predictable basis or when the flexibility policy was ended, whichever was earlier. This flexibility was set to expire on October 31, 2022 (the same anticipated expiration date as the I-9 form); however, the flexibilities were extended through July 31, 2023. The employers that took advantage of the flexibilities and conducted I-9 verification remotely during the COVID-19 pandemic must complete the in-person inspection by the end of this month, August 30, 2023, unless they are eligible to use DHS’ new alternative live video procedure explained in further detail below.
To be eligible to use the new alternative procedure, employers must:
- have performed remote examination of an employee’s documents between March 20, 2020, and July 31, 2023;
- been enrolled in E-Verify at the time they completed the Form I-9 for that employee;
- created a case in E-Verify for that employee (except for reverification where an E-Verify query wouldn’t be necessary); and
- be currently enrolled in and continue to participate in E-Verify.
Changes in Effect
New I-9 Form
As of August 1, 2023, the new I-9 form has been published, and employers are able to use either the former or updated form until October 31, 2023. Starting November 1, 2023, employers must utilize the updated I-9 form. The new I-9 form expires on July 31, 2026.
The new I-9 form has condensed the absolutely necessary information down from two pages to one page and added two supplemental pages that may or may not apply to the individual based on the circumstances. The Form I-9 instructions have also been reduced from 15 pages to 8 pages.
Section one of the I-9 is completed by the employee. There are formatting changes to this section on the new form but no substantive changes. The section to be completed by the preparer and/or translator was removed from the first page of the old I-9 and relocated to an addendum titled Supplement A, found on page 3 of the new form.
Section two of the I-9 is completed by the employer and covers the review and verification of the employee’s documents. Under the “additional information” section, the new I-9 form has an option to “Check here if you used an alternative procedure authorized by DHS to examine documents,” which we discuss further below.
Section three of the old I-9 form was for employers to execute if they were reverifying employees or rehiring former employees. In the new I-9 form, this section three has been relocated to Supplement B, found on page four of the new I-9 form. The new I-9 reverification also inquires whether the employer utilized an alternative procedure authorized by the DHS.
Two other positive improvements include the elimination of the word “alien” to describe certain workers, which has been changed to “noncitizen,” and technology changes to allow the form to be filled out on tablets and mobile devices.
As of August 1, 2023, employers are no longer able to rely on the COVID-19 flexibilities for executing the I-9 with remote workers; however, DHS/ICE has developed an alternative. On July 25, 2023, DHS published a Final Rule and Notice in the Federal Register. This Rule only applies to employers that are enrolled in the E-Verify program, and the option is only available for hiring sites where E-Verify is being used. This Rule allows employees to present copies of their documentation within three business days of their first day of employment, and the employer must inspect those documents over a live video followed by checking the new “Check here if you used an alternative procedure authorized by DHS to examine documents” box which is included on the new I-9 form.
Employers are not required to use the alternative procedure and can continue performing physical inspections of documents. However, if the live video option is offered, it must be offered consistently to all hires at the hiring site. 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.
DHS announced that it is in the process of developing E-Verify NextGen, which is intended to modernize and streamline the I-9 and verification process. The E-Verify NextGen program is intended to be rolled out throughout 2024.
In the same final rule authorizing remote attestation, it was announced that the Secretary of Homeland Security “has authority under this rule to conduct a pilot program that offers the remote examination option to an even broader category of employers.” The rule proposed in the Federal Register on August 3, 2023 explains that the pilot program would inform future expansion and application of I-9 flexibilities. Non-E-Verify employers meeting certain eligibility criteria would be able to apply to participate in the pilot program. At this time the pilot program is only a proposal open to public comment until October 2, 2023.
- August 1, 2023: The COVID-19 flexibilities for remote inspection ceased.
- August 1, 2023: The “alternative authorized procedure” takes effect for employers enrolled in E-Verify.
- August 30, 2023: Physical inspection of employee’s I-9 documents must be completed for employees that had a remote inspection due to the COVID-19 pandemic, unless the employer was enrolled in E-Verify, remotely inspected the I-9 documents and ran the E-Verify inquiry (in which case they can use the new alternative procedure).
- October 31, 2023: The last day that the former I-9 form can be utilized.
- July 31, 2026: The new I-9 form expires.
Employers should review their current I-9 practices and advise human resources and managers on implementing the necessary changes and deadlines. If there are any outstanding questions, employers can reach out to the Buchanan attorneys for further guidance.
- 8 C.F.R. § 274a.1 (g): “The term employer means a person or entity, including an agent or anyone acting directly or indirectly in the interest thereof, who engages the services or labor of an employee to be performed in the United States for wages or other remuneration. In the case of an independent contractor or contract labor or services, the term employer shall mean the independent contractor or contractor and not the person or entity using the contract labor.”
- See 8 U.S. Code § 1324a (b).
- See 8 C.F.R. § 274a.2 (a)(2).
- See 8 C.F.R. § 274a.2 (b)(2)(ii).
- See 8 C.F.R. § 274a.10 (b)(2).