The U.S. Citizenship and Immigration Service (USCIS) published on Aug. 1, 2023, a revised version of Form 1-9, Employment Eligibility Verification, with a requirement that all employers must start using the updated form by Nov. 1, 2023.
Form I-9 is used to verify the identity and employment authorization of individuals hired for employment in the United States. Employers who continue using the older form after Oct. 31, 2023, will be penalized.
Among the improvements to the form is a checkbox employers enrolled in E-Verify can use to indicate they remotely examined identity and employment authorization documents under an alternative procedure authorized by the Department of Homeland Security (DHS)
“The I-9 employment verification process is taking a giant step into the 21st Century making onboarding remote hires a wee bit easier for many U.S. employers,” reported Gregory A. Ward for the Squire Patton Boggs Employment Law Worldview blog.
The Society for Human Resource Management (SHRM) applauded the release of the new streamlined and shortened I-9 forms, especially the remote document examination.
“SHRM enthusiastically welcomes this new development, as we have been advocating for a remote Form I-9 verification process for years, particularly over the last three years with the implementation of the COVID-19 flexibilities. The Remote Form I-9 Alternative Procedure reflects the modern reality of the American workforce and HR processes and takes account of current and emerging technology – all while investing in the integrity and the security of the U.S. immigration system,” said Emily Dickens, SHRM’s chief of staff, head of public affairs and corporate secretary.
The Revised Form I-9 Includes the Following Changes
The UCIS issued a release on July 21, 2023, which said that the revised Form 1-9 includes the following changes:
- 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, Re-verification and Rehire, to a standalone supplement that employers can print if or when rehire occurs or re-verification 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 8 pages.
- Includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination.
What Employers Need to Know About Remote Examination
On July 21, 2023, DHS announced a final rule in the Federal Register that recognizes the end of temporary COVID-19 flexibilities as of July 31 and provides DHS the authority to authorize optional alternatives for employers to examine Form I-9 documentation.
At the same time, DHS also published an accompanying document in the Federal Register describing and authorizing employers enrolled in E-Verify the option to remotely examine their employees’ identity and employment authorization documents under a DHS-authorized alternative procedure.
The Federal Register document provides an alternative for certain employers to remotely examine Form I-9 documents, instead of the current requirement to examine documents in-person. To participate in the remote examination of Form I-9 documents under the DHS-authorized alternative procedure, employers must 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.
Employers who 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 August 1, 2023, to satisfy the physical document examination requirement by Aug. 30, 2023.
Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by Aug. 30, 2023.
“Today, the U.S. Department of Homeland Security (DHS) moved to modernize employment eligibility verification, taking additional steps to provide certainty and flexibility for American businesses. Rather than examining an employee’s identity and employment authorization documents in person, employers who participate in E-Verify and are in good standing will have the option to conduct verification electronically and with a live video call interaction,” said DHS.
The Importance of Form I-9 Recordkeeping and Compliance
The Squire Patton Boggs article reminds employers that they are required to complete a Form I-9 for all employees hired after November 6, 1986, and retain all completed I-9s (along with supplements and copies of relevant identity and employment authorization documents) for active employees.
The article also says that upon termination of employment, employers must retain the I-9 for the later one (1) year after termination or three (3) years after the date of hire.
“Why ensure I-9 compliance? There isn’t really an option – legally, you have to be I-9 compliant because, well, it’s the law,” says a JD Supra article. “Not convinced? In 2019, employers found to be in violation of Form I-9 requirements faced $14 million in total fines. Not something to be laughed at! On top of this, the Department of Homeland Security (DHS) introduced new, increased fines in 2020.”
Completing the New Form I-9
The SHRM laid out the following steps included for employers in completing the new Form I-9:
- Section 1 of the new form collects identifying information about the employee and requires the employee to attest to whether they are a U.S. citizen, noncitizen national, lawful permanent resident, or noncitizen authorized to work in the United States. This section must be completed at the time of hire.
- Section 2 of the new form collects information about the employee’s identity and employment authorization. The employee must present original documentation proving the employee’s identity and employment authorization, which the employer must review. This section must be completed within three days of the time of hire.
- Supplement A should be completed when new hires have translators and/or preparers assist them in completing Section 1.
- Supplement B should be completed when a re-verification is required, a rehire occurs or a name change needs to be recorded. This should be completed prior to the workers’ employment authorization expiration.
“Employers must make I-9 forms available for inspection upon request by officers of the DHS, the U.S. Department of Justice, or the U.S. Department of Labor. Employers that don’t complete and retain I-9 forms properly may face civil money penalties and, in some cases, criminal penalties, according to the DHS,” reported the SHRM.
