On July 21, 2023, DHS announced a new edition of Form I-9 along with a new rule permitting certain employers to conduct remote inspection of the documents used in the Form I-9 employment eligibility verification process.  The new rule will be published on July 25^th, 2023 and will become effective on August 1, 2023.

New Form I-9

On July 25^th, 2023, USCIS will publish a new version of Form I-9 (Rev. 08/01/23).  This new version will be available for use beginning August 1, 2023 and will become mandatory for all employers on November 1, 2023.  Employers may continue using the previous edition of Form I-9 (Rev. 10/21/19) through October 31, 2023. 

The new Form I-9 contains several significant changes including:

• Consolidates Sections 1 and 2 into a single-sided page;
• Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;
• Moves the Section 3 Reverification and Rehire area to a standalone supplement that employers may print when a rehire occurs or a reverification is required;
• Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as provide guidance and links to information on automatic extensions of employment authorization documentation;
• Includes a checkbox that eligible employers may use to indicate they examined an employee’s Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination;
• Reduces the Form I-9 instructions from 15 pages to 8 pages; and
• Provides for a fillable form on tablets and mobile devices.

New Alternative Procedure for Qualifying E-Verify Employers

DHS also released a final rule that will allow certain employers enrolled in E-Verify the option of continuing to verify employee Form I-9 documents in a remote manner.  Notably, this new rule will go into effect on August 1, 2023– one day after the COVID-19 temporary Form I-9 flexibilities are set to expire.  The new rule provides an alternative procedure for employers enrolled in E-Verify who are in good standing. 

Beginning on August 1^st, to participate in the remote examination of Form I-9 documents under the new alternative procedure, a qualifying employer must be enrolled in E-Verify, examine and retain clear and legible copies of all Form I-9 documents, conduct a live video interaction with the employee, and create an E-Verify case if the employee is a new hire.  Employers utilizing the new DHS-authorized alternative verification method will indicate so on Form I-9 by marking a checkbox on the new version of Form I-9.

Qualified employers are not required to use the alternative procedure and may opt to continue in-person physical document inspection.  If an employee is unable or unwilling to submit documents following the alternative procedure, the employer must allow the employee to submit documents for physical examination.  Qualified employers may not use the new alternative procedure for employees hired before August 1, 2023, with one exception: qualified employers may utilize the alternative remote procedures for employees hired prior to August 1^st if they are doing so in satisfaction of the physical examination requirements of the COVID-19 temporary flexibilities.

Employers who used the COVID-19 temporary flexibilities and remotely inspected an employee’s identity and employment authorization documents during the pandemic (March 20, 2020 – July 31, 2023) have until August 30, 2023 to conduct an in-person physical inspection of the employee’s documents.  Under the new rule, employers who were enrolled in E-Verify during the pandemic and used the temporary COVID-19 flexibilities for Form I-9 completion may take advantage of the new alternative remote procedure to satisfy the physical examination requirement.  In order to qualify for this option to use the alternative procedure for employees hired prior to August 1, 2023, an employer must have (1) been enrolled in E-Verify at the time the employer conducted the remote examination of documents under the COVID-19 flexibilities; (2) created an E-Verify case for the employee at the time of hire; and (3) performed the remote inspection between March 20, 2020 and July 31, 2023.  Eligible employers may use the alternative remote procedure by annotating Form I-9 in the Additional Information field “alternative procedure” and the date of the live video interaction.  Employers who were not enrolled in E-Verify at the time they completed Form I-9 using the COVID-19 temporary flexibilities may not use the alternative procedure and must instead comply with the requirement to physically examine the employee’s documents, in-person, by August 30, 2023.  Eligible employers may opt to continue with the in-person physical examination of the employee’s documents and are not required to use the alternative procedure.

Impact and Considerations of New Policy

The DHS finalized regulation creates a permanent remote Form I-9 document inspection process – a move towards modernizing the employment eligibility verification process in recognition of the post-COVID realities where more Americans are working remotely than ever.

• Employers who were not enrolled in E-Verify and who completed Form I-9 under the COVID-19 flexibilities must proceed with in-person physical inspection of the employee’s Form I-9 documents by August 30, 2023.
• Employers who were enrolled in E-Verify and who completed Form I-9 under the COVID-19 flexibilities should consider taking advantage of the new alternative procedure.
• Employers should begin using the new version of the Form I-9 for new hires.
• Employers not already enrolled in E-Verify should confer with counsel to consider the benefits of E-Verify enrollment.

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