Over the past two months, the U.S. Citizenship and Immigration Service (USCIS) made multiple changes to the employment verification process, which directly impact the review and approval of employee identity and employment eligibility documentation.
First, on July 31, 2023, the USCIS ended its modified COVID-19 procedures for the review of identity and employment eligibility documentation. Since March 20, 2020, the USCIS has relaxed its physical inspection requirements associated with the Form I-9 employment verification process by allowing employers to remotely verify new hire documents. This process, which was implemented as a COVID-19 precaution, provided all employees with a temporary exemption from the USCIS physical examination requirements.
In a statement issued on May 5, 2023, the USCIS announced that this policy would end on July 31, 2023, and its physical inspection requirements would be reinstated. Furthermore, employers who hired employees on or after March 20, 2020 and remotely verified their employment documentation will need to reverify each employee's identity and employment eligibility documentation by August 31, 2023.
Second, on August 1, 2023, the USCIS published a new Form I-9 (2023 Version) that streamlines the employment verification process. The 2023 Version Form I-9 contains the following key changes:
- Sections 1 and 2 were reorganized to fit onto a single-sided sheet
- The Citizenship and Immigration Status field of Section 1 was updated by replacing the "an alien authorized to work" option with "noncitizen authorized to work." It also clarifies the distinction between the new "noncitizen authorized to work" option and the "noncitizen national" option
- The Prepare/Translator Certification portion of Section 1 was moved to a standalone supplement (Supplement A) that can be provided to employees when necessary
- Section 3, addressing Reverification and Rehire, was moved to a standalone supplement (Supplement B) only to be included when necessary
- The Lists of Acceptable Documents page was revised to include some acceptable receipts, as well as guidance and links to information on automatic extensions of employment authorization documentation
- The Anti-Discrimination Notice was updated based on the formatting changes made in the 2023 Version
- The Form I-9 instructions were reduced from 15 pages to 8 pages and
- The Form I-9 is now compatible with tablet and mobile devices
Employers are still able to use the 2019 version of the Form I-9 through October 31, 2023. However, starting November 1, 2023, the USCIS will only accept the 2023 Version Form I-9, which can be downloaded at the following link: https://www.uscis.gov/newsroom/alerts/uscis-to-publish-revised-form-i-9.
In addition to publishing the 2023 Version Form I-9, the Department of Homeland Security finalized rules to create a framework under which employers can implement alternative document examination procedures, including remote document examination. At present, only employers registered with E-Verify, and who are in good standing, can continue conducting electronic verifications of employee documentation after August 1, 2023. However, these rules from the DHS create the framework for permanent remote examinations to become a reality for all employers. To account for continued electronic verification of employee documentation, the 2023 Version Form I-9 includes a checkbox for employers to indicate that they examined Form I-9 documentation remotely under a Department of Homeland Security authorized alternative procedure rather than via physical examination.
As always, employers should be aware of the changes to the Form I-9 and comply with the new identity and employment eligibility documentation verification procedures, as failing to do so could result in civil penalties ranging from $272 to $2,701 per violation. Furthermore, additional penalties will be assessed in the range of $676 to $27,018 if it is determined that an employer knowingly hired and continued to employ a worker without work authorization.