Employers’ Action Steps for the New Form I-9 Updates

The U.S. Citizenship and Immigration Services (USCIS) recently announced several updates to the Form I-9 which every employer in the United States is required to use for verifying the identity and employment authorization of employees. In addition to the form updates, the USCIS announced that the temporary COVID-19 accommodations for Form I-9 have expired as of July 31, 2023. Below are the recent changes to the Form I-9 and action steps that employers must comply with to ensure compliance and avoid potential penalties.

Expiration of temporary COVID-19 Accommodations. As of July 31, 2023, the temporary COVID-19 Form I-9 accommodations which permitted remote verification of Form I-9 documents for employees exclusively working remotely due to COVID-19 precautions ended. Employers have until August 30, 2023, to conduct physical verification of eligibility documents for employees who utilized remote verification between March 2020 and July 31, 2023.

Employers who meet specific requirements may use an alternative procedure in lieu of physically examining Form I-9 documentation that had been previously verified remotely. To qualify, employers must have performed remote examination, been enrolled in E-Verify at the time of initial examination, created a case in E-Verify (except for reverification cases), and continue to participate in E-Verify. Employers using this method must conduct a live video interaction to remotely examine Form I-9 documents and annotate the use of the alternative procedure on the form by August 30, 2023.

Employers who do not meet all four alternative procedure requirements must perform an in-person physical examination of documents by August 30, 2023. Employers have the option to use an Authorized Representative for completing the in-person physical document examination. The Department of Homeland Security (DHS) intends to publish a regulation clarifying the use of Authorized Representatives for in-person inspection. While the timing of this guidance is unknown, the new I-9 Instruction Form details that an Authorized Representative is “Any person an employer designates to complete and sign Form I-9 on the employer’s behalf.  Employers are liable for any statutory and regulatory violations made in connection with the form or the verification process, including any violations committed by any individual designated to act on the employer’s behalf.”

Moving forward, DHS has introduced a new I-9 remote document verification procedure as an alternative to in-person physical examination. Employers that wish to use this procedure must be enrolled in the E-Verify program and be in “good standing,” Meaning the employer is enrolled in E-Verify with respect to all hiring sites that use the alternative procedure to remotely examine documents, uses E-Verify to confirm the employment eligibility of newly-hired employees in the United States, and complies with all other requirements of the E-Verify program. Employers conducting remote verification must retain clear and legible copies of all documents, conduct a live video interview with the employee, and create E-Verify cases for new hires. This new procedure became available as of August 1, 2023.

New I-9 Form. The U.S. Citizenship and Immigration Services (USCIS) has released an updated version of Form I-9, which must be used by employers no later than November 1, 2023. Amongst other changes, the new Form I-9 includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under the newly authorized virtual procedures.

Employers’ Action Steps

Review Your Remote Hires: Identify employees who were hired and verified remotely between March 2020 and July 31, 2023. Make a list of these employees to ensure they undergo the necessary physical verification process by August 30, 2023.

Determine Eligibility for Alternative Procedure: Confirm if your organization meets all four requirements for using the alternative procedure for remote document verification. Ensure you were enrolled in E-Verify at the time of remote verification, created E-Verify cases (except for reverification), and are currently enrolled and participating in E-Verify.

Implement Alternative Procedure (if applicable): If your organization qualifies for the alternative procedure, begin using it from August 1, 2023, for employees who were remotely verified. Conduct a live video interaction with each employee, remotely examine their Form I-9 documents, and annotate the use of the alternative procedure on the form.

Schedule In-Person Physical Examinations (if needed): For employees who do not meet all the requirements for the alternative procedure, arrange for in-person physical examinations of their Form I-9 documents. You may use an Authorized Representative for this process if necessary. As a reminder, guidelines on the use of an Authorized Representative will be forthcoming by the DHS.

Update I-9 Forms Accordingly: For in-person physical examinations conducted after remote verification, annotate the date of the in-person examination in Section 2 (Additional Information) or Section 3, as appropriate.

Begin using the new I-9 Form: No later than November 1, 2023, implement the use of the new I-9 Form.

Train Authorized Representatives and HR Staff: If you utilize Authorized Representatives for physical document examinations, provide them with proper training on Form I-9 requirements and the new procedures. Ensure consistent practices and non-discriminatory treatment of all employees.

Have questions on how to ensure new hire, remote worker, and I-9 compliance? We are here to help! Contact us at insource@insourceservices.com or (781) 235-1490.