Legal Update: New Form I-9 Available Aug. 1, 2023, With a Remote Verification Option for E-Verify Users

On July 21, 2023, the U.S. Citizenship and Immigration Services (USCIS) announced a new version of Form I‑9, also known as the Employment Eligibility Verification form. Employers are required to use this form to verify that their employees are authorized to work in the United States. Employers can begin using the new form Aug. 1, 2023

Form Updates

As explained by USCIS, the new Form I-9:

·         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 eight pages; and

·         Includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a Department of Homeland Security (DHS)-authorized alternative procedure rather than via physical examination.

The agency announcement also explains that the revised Form I-9 (edition date Aug. 1, 2023) will be published on uscis.gov on Aug. 1, 2023. Employers can use the current Form I-9 (edition date Oct. 21, 2019) through Oct. 31, 2023. Starting Nov. 1, 2023, all employers must use the new Form I-9.

Remote Document Verification 

On July 21, 2023, USCIS announced a final rule in the Federal Register that recognizes the end of temporary COVID-19 flexibilities on July 31, 2023. The final rule also provides the DHS the authority to authorize optional alternatives for employers to examine Form I-9 documentation. 

Under current requirements, employers must physically inspect I-9 acceptable documents to certify their employers are authorized to work in the United States. However, with the final rule, DHS also published an accompanying document in the Federal Register providing employers enrolled in E-Verify the option to remotely examine their employees’ identity and employment authorization documents under a DHS-authorized alternative procedure.

The remote verification option will not be available to employers unless they enroll in E-Verify. 

To participate in the remote examination of Form I-9 documents under the DHS-authorized alternative procedure, employers will need to:

·         Be enrolled in E-Verify;

·         Examine and retain copies of all documents;

·         Conduct a live video interaction with the employee; and

·         Create an E-Verify case if the employee is a new hire.

Document Verification Timeline

Employers that were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020, to July 31, 2023) may choose to use the new alternative procedure starting on Aug. 1, 2023, to satisfy the physical document examination requirement by Aug. 30, 2023.

Employers that were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by Aug. 30, 2023.

This Legal Update is not intended to be exhaustive nor should any discussion or opinions be constructed as legal advice. Readers should contact legal counsel for legal advice. © 2023 Zywave, Inc. All rights reserved.