On August 1, 2023, United States Citizenship and Immigration Services (“USCIS”) released a new Form I-9 that employers must use to verify the identity and employment authorization of their employees. The new form recognizes the recent expansion of remote and hybrid work and must be used starting November 1, 2023.

The new Form I-9 is more concise and provides additional verification options accommodating the recent shifts to remote and hybrid work schedules. Most prominently, it adds a checkbox to indicate whether an employee’s documentation was examined using “an alternative procedure” set forth by the Department of Homeland Security (“DHS”). The “alternative procedure” will provide employers that participate in E-Verify and are in good standing with the option to examine documents remotely via a live video interaction.  The employee is required to transmit a copy of the relevant document and then present the same document to the employer’s verifier during the video call. Employers are required to retain copies of documents presented virtually, just as with documents examined in person.

Employers that implement the alternative method should apply rules consistently to avoid potential liability for discrimination. For example, while employers may choose to use an alternative method for an entire worksite or only for remote and/or hybrid employees, they may not base eligibility for the alternative method on a protected characteristic, such as citizenship, immigration status, or national origin.

The alternative method is currently only available to certain employers (i.e., those that participate in E-Verify and are in good standing). However, it is expected that the DHS will eventually expand eligibility to all employers.

The new form is available on the USCIS website. Employers may continue to use the old Form I-9 (Rev. 10/21/2019) until October 31, 2023, but will be subject to penalties for using the prior form after that time.

How do Employers Complete the New Form I-9?

The Form I-9 has been shortened and simplified. It now contains two sections and two supplements:

• Section 1: Section 1 must be filled out by the employee or the employee’s preparer and/or translator. It collects basic identifying information about the employee, such as name, address, social security number, and citizenship or immigration status.
• Section 2: Section 2 must be filled out by the employer. It collects information about the documents used for the verification process and collects identifying information about the employer.
• Supplement A: Supplement A should be completed if the employee used a preparer and/or translator. It collects identifying information about the preparer and/or translator and requires him or her to attest to assisting with Section 1 of the form and verify that the information therein is correct to the best of the preparer and/or translator’s knowledge.
• Supplement B: Supplement B (formerly Section 3) should be used to verify an employee’s continued employment authorization. Supplement B may also be used for a limited number of other situations, such as if an employee is rehired within three years of the initial completion of the form or to record a name change.

As always, employers are required to maintain Forms I-9 for the duration of employment must continue to maintain the forms for either three years following the date of hire or one year after separation, whichever is later. Further, Forms I-9 must be made available for inspection upon request by the DHS, Department of Justice, or the Department of Labor.

What’s Different in the New Form I-9?

The New Form I-9 contains the following changes:

• The top of the form now includes an “Anti-Discrimination Notice” explaining how to avoid liability for discrimination in the I-9 process.
• Reduces Sections 1 and 2 to a single page by merging fields where possible.
• Adds a checkbox for eligible employers to indicate if the employer used a DHS-authorized alternative procedure to examine the employee’s documentation.
• Moves the Preparer/Translator Certification portion from Section 1 to a separate Supplement A, which employers can provide to employees when needed.
• Moves the Reverification and Rehire portion from Section 3 to a separate Supplement B, which employers can use when needed.
• Replaces the word “alien” with the word “noncitizen” in in Section 1 and clarifies the difference between “noncitizen national” and “noncitizen authorized to work.”
• Improves virtual compatibility. For instance, the form can now be filled out on tablets and mobile devices, and it is no longer required to input “N/A” into certain fields.
• Revises the List of Acceptable Documents.

What Does the New Form I-9 Mean for Employers?

The new Form I-9 reflects the federal government’s understanding that changes must be made to streamline the employment verification process and adapt to remote and hybrid work. This development provides added flexibility and additional options, which employers can utilize to accommodate needs in their unique work environments. As always, employers should carefully implement any new processes, including the DHS’s new alternative remote employment verification process.