Changes to I-9 Form Requirements as of Aug 1st

On August 1, 2023, U.S. Citizenship and Immigration Services (“USCIS”) will release a new version of Form I-9, Employment Eligibility Verification. Effective that same day, the Department of Homeland Security (“DHS”) has authorized a permanent optional alternative procedure to allow qualified employers to virtually inspect and verify identification documents to complete Section 2 of Form I-9. Virtual inspection that has been allowed for remote employees since 2020 had been set to expire July 31, 2023.

While DHS previously stated that remotely-verified forms would need to be reverified no later than August 30, 2023, the agency announced 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. Additional details and clarification of “properly completed” will be provided when they become available.

According to the DHS, the alternative remote verification procedure will only be available at this time to qualified employers who are enrolled and participate in good standing in E-Verify. Employers who are already enrolled in E-Verify are not required to reenroll in E-Verify to use the alternative procedure. Also according to DHS, E-Verify has the capacity to support an increased number of employers who may choose to newly enroll in E-Verify to use the alternative procedure. Employers who do not qualify may continue to use authorized representatives where in-person inspection is not feasible.

Qualified employers who choose to remotely verify identification documents after August 1, 2023 must follow the below procedure:

1. The employee must first transmit a copy of the document(s) to the employer.
2. The employer must examine copies (front and back, if the document is two-sided) of the documents to ensure that the documentation presented reasonably appears to be genuine.
3. The employee must then present the same documents during a live video interaction with the employer.
4. The employer must check the corresponding box on the Form I-9 (Rev. 08/01/23) that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable.
5. The employer must retain a clear and legible copy – either paper or electronic versions — of the documentation (front and back, if the documentation is two-sided), of all documents examined for as long as the employee works for the employer and for a specified period after employment has ended.

Starting on August 1, 2023, employers may download the new Form I-9 (Rev. 08/01/23) from the USCIS website. The prior version of Form I-9 (Rev. 10/21/19) will no longer be valid after October 31, 2023.

According to the USCIS, the forthcoming new version of Form I-9 will have significant changes to the form and its instructions, including a checkbox to indicate that an employee’s Form I-9 documentation was examined virtually. Other updates to Form I-9 include:

• Reduced Sections 1 and 2 to a single-sided sheet. No previous fields were removed. Rather, multiple fields were merged into fewer fields when possible.
• Moved the Section 1 Preparer/Translator Certification area to a separate, standalone supplement (Supplement A) that employers can provide to employees when necessary.
• Moved the Section 3 Reverification and Rehire area to a separate, standalone supplement (Supplement B) that employers can print if or when rehire occurs or reverification is required.
• Removed use of “alien authorized to work” in Section 1 and replaced it with “noncitizen authorized to work” as well as clarified the difference between “noncitizen national” and “noncitizen authorized to work.”
• Ensured the form can be filled out on tablets and mobile devices.
• Removed certain features to ensure the form can be downloaded easily. This also removes the requirement to enter N/A in certain fields.
• Updated the notice at the top of the Form I-9 that explains how to avoid discrimination in the Form I-9 process.
• Revised 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.

Updates to the Form I-9 instructions include:

• Reduced length of instructions from 15 pages to 8 pages.
• Added definitions of key actors in the Form I-9 process.
• Streamlined the steps each actor takes to complete their section of the form.
• Added instructions for use of the new checkbox for employers who choose to examine Form I-9 documentation under an alternative procedure.
• Removed the abbreviations charts and relocated them to the M-274, Handbook for Employers: Guidance for Completing Form I-9. An updated M-274 will likely be released along with the revised Form I-9, but it is not yet available.

Flexible I-9 Rules for Remote Workers Extended Through October

In a surprise move, federal immigration officials recently announced that they will permit remote review of new hires’ I-9 documentation for those who work exclusively in a remote setting due to COVID-19 related precautions through October 31, 2022. According to the April 25th announcement, U.S. Immigration and Customs Enforcement (ICE) has said that the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis for at least the next six months. Could this continued flexibility be a welcome sign of things to come? 

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E-Verify to Go Dark This Weekend

The federal government’s electronic employment verification system will be unavailable this weekend due to system upgrades.

U.S. Citizenship and Immigration Services (USCIS) announced that E-Verify will be shut down from midnight March 23 to 8 a.m. March 26 Eastern Time. E-Verify users are encouraged to complete and close any open cases prior to the system shutdown.

The Department of Homeland Security and the Social Security Administration will not be able to assist employees with case resolution issues during the outage. myE-Verify, the system’s resource portal for workers, will also be unavailable.

“During the suspension, employers will not be able to access their E-Verify accounts and employees will be unable to resolve E-Verify tentative nonconfirmations,” said Michael H. Neifach, an attorney in the Wahington, D.C., regional office of Jackson Lewis. “The E-Verify outage does not change any Form I-9 requirements,” he added. “Form I-9s must be completed no later than three business days after employment.”

To minimize the shutdown’s impact, the agency stipulated:

• The three-day rule for creating E-Verify cases is suspended for cases affected by the outage. If an employee’s first day occurs between March 20 and March 26, employers will have until March 29 to create an E-Verify case.
• Workers will have two additional federal working days to resolve tentative nonconfirmations.
• Workers will have an additional two federal working days from the date listed on their referral date confirmation to contact the agencies.
• Employers may not take adverse action against an employee because the E-Verify case is in interim case status or during the extended interim case status due to the suspension. Federal contractors with E-Verify clauses should contact their contracting officer to inquire about extending contractor deadlines.

USCIS is prepping for a move to an upgraded user interface later this month. Enhanced features are expected to include a streamlined process for creating and managing cases, modernized data-matching to reduce tentative nonconfirmations, and improved data integrity.

New  Version of I-9 Form Released

U.S. Citizenship and Immigration Services (USCIS) has released an updated version of the Form I-9, Employment Eligibility Verification. The new Form I-9, dated 11/14/2016N, will become mandatory on Jan. 22, 2017, replacing the version dated 03/08/2013 N, which may continue to be used until Jan. 21, 2017.  

The new Form I-9, which must be used for all newly hired employees and those who require the re-verification of their U.S. employment eligibility, contains a number of new features, including but not limited to:

1) Clarification of the “other names used” field in Section to request only “other last names used” and the numbering of immigration status categories in Section 1;

2) Additional details regarding the preparer/translator category, including the ability to select multiple preparers/translators;

3) A designated area to enter additional information that previously needed to be entered as a margin note, such as the auto-extension of an individual’s work-authorized status, where applicable;

4) A separate page (Page 3) for Section 3 of the Form I-9;

5) Additional prompts and electronic enhancements, such as drop-down lists and calendars, to facilitate the proper entry of required information.