DHS Updates Form I-9 and Announces Flexible Alternatives to the Employment Eligibility Verification Process for E-Verify Participants

Category: Client Alerts
Date: July 28, 2023
Title: DHS Updates Form I-9 and Announces Flexible Alternatives to the Employment Eligibility Verification Process for E-Verify Participants

New version of Form I-9 to be released on Aug. 1, 2023

The U.S. Department of Homeland Security (DHS) recently announced modifications to the Form I-9, condensing it to one page to make it easier for employers to use. The new I-9 will be published on Aug. 1, 2023, at which point employers may begin using it. Employers may continue using the Oct. 21, 2019 version of the Form I-9 through Oct. 31, 2023. Starting Nov. 1, 2023, all employers must use the new (Aug. 1, 2023) version exclusively.

The new version of the Form I-9 will now be accessible on tablets and mobile devices. This revised form will be accompanied by condensed instructions, with the goal of streamlining the materials and reducing the burden associated with completing the form. Other notable changes to the Form I-9 include a revised List of Acceptable Documents page, including new acceptable receipts; moving Section 1 (Preparer/Translator Certification) and Section 3 (Reverification and Rehire) to stand-alone supplements; and including a checkbox for E-Verify employers to indicate they examined the documentation remotely under the new DHS-authorized procedure (described below), rather than by physical examination.

Additional Benefits for E-Verify Employers

DHS also announced an expansion of the employment eligibility verification process, allowing employers that participate in E-Verify and are in good standing to have the option of conducting verification electronically. In an attempt to modernize the verification process in the post-COVID-19 world, where remote work has proliferated in the workforce, this new option goes into effect Aug. 1, 2023 as a final rule.

This new option follows the July 31, 2023 sunset of temporary COVID-19 flexibilities (see our last client alert) and allows for a permanent remote alternative to the physical examination of Form I-9 documentation for new employees. E-Verify employers may opt to continue conducting physical examinations or remotely examine the Form I-9 documents under the DHS-authorized alternative procedure (detailed below). The following chart provides a breakdown of the options and obligations of employers that are enrolled in E-Verify and those that are not E-Verify users:

Permissible I-9 Document Inspection Procedures for Employees Hired on or After Aug. 1, 2023

Action That Employers Must Take by Aug. 30, 2023 Regarding Employees Who Were Verified Between March 20, 2020, and July 31, 2023, Using the COVID-19 Flexibilities

E-Verify Employers

1. Conduct physical examinations of Section 2 or Section 3 documents (which was the only option prior to March 20, 2020).

2. Remotely examine Section 2 or Section 3 documents under the DHS-authorized alternative procedure as described below.

Please remember, this “alternative procedure” can only be used (in a nondiscriminatory manner) by E-Verify employers in good standing at their E-Verify participating hiring site.

The alternative procedure consists of the following: within three business days of an employee’s first day of employment, a qualified employer must:

1. Examine copies (front and back) of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine.

2. Conduct a live video interaction with the individual presenting the document(s) to ensure the documentation reasonably appears to be genuine and related to the individual. The employee must first transmit a copy of the document(s) to the employer (per Step 1 above) and then present the same document(s) during the live video interaction.

3. Indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable.

4. Retain a clear and legible copy of the documentation (front and back if two-sided).

5. In the event of a Form I-9 audit or investigation by a relevant federal government official, make available clear and legible copies of the identity and employment authorization documentation.

By way of background, under the temporary COVID-19 flexibilities (which will sunset on July 31, 2023), employers were permitted to inspect Section 2 (or Section 3) documents “over video link, fax, email, etc.” (as described by DHS). Specifically, within three business days of the first day of employment, employers must have obtained, remotely inspected, and retained copies of the identity and employment eligibility documents their employees provide to complete Section 2 (or Section 3).

By Aug. 30, 2023 using one of the two following methods, E-Verify employers must inspect the documents that were originally inspected remotely under the temporary COVID-19 flexibilities:

1. Conduct physical examinations of Section 2 or Section 3 documents (please see our last client alert for details on physical examination requirements).

2. Remotely examine Section 2 or Section 3 documents under the DHS-authorized alternative procedure. In order to take advantage of this alternative procedure, employers must have (1) been enrolled in E-Verify at the time they performed the original remote examination of an employee’s Form I-9 documentation, (2) created an E-Verify case for that employee (except for reverification), and (3) performed the remote inspection between March 20, 2020, and July 31, 2023.

UNDER THE ALTERNATIVE PROCEDURE (#2 ABOVE)

If the documents were originally presented by email or fax:

The new DHS guidance makes clear that if documents were originally presented only through electronic transmission (e.g., fax or email WITHOUT a video link), the employer will have to inspect the documents through a live video interaction by Aug. 30, 2023. Those employers who conduct a live video interaction must write “alternative procedure” with the date of the live video interaction in the Section 2 Additional Information Field (or in Section 3 if the I-9 involved a reverification).

If the documents were originally presented by video link:

Unfortunately, DHS did not provide clear guidance on how to now inspect documents that were originally presented by live video link — i.e., whether another live video inspection must be conducted or if merely adding language to the existing I-9 will satisfy this inspection requirement (since the documents were previously inspected over live video). This leaves employers with a difficult choice — take the safe course of action (which takes time and effort) and perform another video interaction (prior to Aug. 30) OR take the practical approach (which presents risk in that DHS has not specifically authorized this) and take no additional action (given the documents were previously inspected by live video and the I-9 already indicates this with the date of that video interaction).

Employers Not Enrolled in
E-Verify

Within three business days of an employee’s first day of employment, an employer must physically inspect required I-9 verification documents presented by an employee and complete Section 2 (new hire) or Section 3 (reverified employees) of the I-9 (just as it did before March 20, 2020).

Employers that now enroll in E-Verify may use the alternative procedure (described above) on or after the date of enrollment.

Employers who were not enrolled in E-Verify at the time they initially performed a remote examination of an employee’s documents under the COVID-19 flexibilities between March 20, 2020, and July 31, 2023, are required to physically examine the employee’s Form I-9 documents in the employee’s physical presence and update the I-9 by Aug. 30, 2023 (as detailed in our last client alert).

For further detail and additional guidance on the Form I-9, Employment Eligibility Verification, and the E-Verify process, please follow the links below to the applicable U.S. Citizenship and Immigration Services and DHS webpages:

https://www.uscis.gov/i-9

https://www.dhs.gov/verify-employment-eligibility-e-verify

If you have any questions or need additional information about this alert, please feel free to contact us.