This week we are pleased to have a guest post by Robinson+Cole Immigration Group lawyers Jennifer L. Shanley and Nina B. Pelc-Faszcza.

Starting November 1, 2023, all employers must use the revised Form I–9, Employment Eligibility Verification (edition date 08/01/23), when completing the employment eligibility verification process for employees. Employers may be subject to penalties for failure to use the new edition, though employers do not need to complete a new Form I–9 for current employees who already have a properly completed Form I–9 on file (unless/until reverification is required).

The updated Form I–9 reflects the option for eligible employers to verify employment eligibility remotely as an important flexibility in a world of increasing remote and hybrid working arrangements, and includes other updates to make the form more user-friendly and streamlined, including:

• The form can now be filled out on tablets and mobile devices.
• A checkbox has been added for E-Verify employers to indicate when they have remotely examined Form I–9 documents.
• The form contains improved guidance to the Lists of Acceptable Documents.

Please click here for a publication from U.S. Citizenship and Immigration Services showcasing a comprehensive overview of changes to the Form I–9 and the Form I–9 Instructions.

A manufacturer may remotely examine Form I‑9 documents instead of reviewing them physically only if the company is enrolled in, and is in good standing with, E-Verify. Otherwise, all non-qualifying employers must still adhere to existing regulations that require physical, in-person examination of Form I‑9 documents (with limited exceptions).

Physical examination of Form I–9 documents was historically required to ensure that employers fully assess the documents presented to verify that they appear to be genuine and reasonably relate to the individual who presents them. The new procedures for remote document inspection have additional requirements to ensure the same level of security. Namely, the alternative remote inspection process involves the employer first electronically obtaining legible copies of the documents from the employee and then conducting a live video examination of those same documents with the employee.

Use of remote document inspection is entirely optional. Qualifying manufacturing employers may continue to physically examine documents for the Form I–9 if they choose. For manufacturers that do choose to offer remote inspection, offer it to employees on a consistent and non-discriminatory basis. For example, a qualified employer may choose to offer remote document inspection for fully remote hires but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity—that is, so long as the employer does not adopt the practice for a discriminatory purpose or treat employees differently based on citizenship, immigration status, or national origin.

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