U.S. Citizenship and Immigration Services (“USCIS”) announced a new version of Form I-9 to verify the identity and employment authorization of employees, as well as a new alternative procedure for document examination. The new Form I-9 will be released and can be used starting August 1, 2023, and employers must use the new form starting November 1, 2023. The alternative procedure may also be used starting on August 1, 2023.
The new Form I-9, which is designed to be completed on phones and other mobile devices, reduces Sections 1 and 2 to a single-sided sheet; moves the Section 1 Preparer/Translator Certification area to a standalone supplement that employers can provide to employees as necessary; and moves Section 3, Reverification and Rehire, to a standalone supplement for use in rehire or reverification situations. Additionally, the Lists of Acceptable Documents have been updated to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation.
The new Form also includes an alternative procedure for document verification, available only to employers who are participants in good standing in E-Verify. E-Verify, authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), is a web-based system through which employers electronically confirm the employment eligibility of their employees. According to USCIS, a participant in good standing in E-Verify refers to an employer that has enrolled in E-Verify with respect to all hiring sites in the United States that use the alternative procedure; is in compliance with all requirements of the E-Verify program; and continues to be enrolled and a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure.
Once enrolled in E-Verify, employers will be required to create a case for all newly hired employees at each hiring site that is enrolled in E-Verify. This is required even if the alternative procedure is not used for that employee. If a qualified employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site. However, an employer may choose to offer the alternative procedure for remote hires only, provided that the employer does not act in a discriminatory manner or treat employees differently based on their citizenship, national origin, or immigration status.
Within three business days of an employee’s first day of employment, all employers enrolled in E-Verify must (1) ensure that the employee transmits a copy (front and back for two-sided documents) of identity and employment authorization documentation to the employer; (2) examine the copy of the identity and employment authorization documentation to ensure that the documentation presented reasonably appears to be genuine; and (3) conduct a live video interaction with the individual who must present the same documentation submitted to ensure it reasonably appears to be genuine and related to the individual. The new procedure – which does not expire but can be canceled or amended by the Department of Homeland Security – includes a checkbox for employers to indicate they examined I-9 documentation remotely under an authorized alternative procedure rather than by a physical examination. Importantly, employers must allow employees who are unable or unwilling to submit documentation using the alternative procedure to submit documents for physical examination.
The new Form I-9 will be available on August 1, 2023, for employers to download from the USCIS website. Liskow’s employment law team can assist you in updating your procedures and ensuring compliance with the new Form I-9 requirements.
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