2023 Form I-9: 3 New Changes

Published: February 21, 2023 by Gordon Middleton

employer reviewing 2023 form I-9 changes

A new Form I-9 for 2023 with updated processes and fewer pages will be introduced this year. Once in place, employers are usually given 90 days to use the form in a compliant manner. Immigration Control and Enforcement (ICE) will announce an official timeline when the new processes are approved. Compliance is especially important due to a recent increase in fines. Until the changes arrive, the current Form I-9 has been extended indefinitely, despite expiring Oct. 31, 2022. Employers should familiarize themselves with these 2023 Form I-9 changes.

Penalties for a first offense and substantive violations or uncorrected technical errors in Form I-9 currently stands at $252 to $2,507. This is up from $237 to $2,360. The following list will help better prepare employers ahead of potential changes to comply and avoid penalties.

1. Permanent Remote Process for Form I-9 Section 2

Upcoming changes include the possibility of a permanent remote process for completion of Section 2 to replace the temporary one introduced during the COVID-19 pandemic. This method could involve use of E-Verify or another process to be announced. The current remote completion process was extended through July 2023. This change would establish a permanent one.

A proposed rule for remote completion was introduced last August with a 60-day comment period and was very popular amongst employers. This new rule would allow ICE to not only extend these flexibilities, but provide alternative options, or conduct a pilot program to arrive at an alternative remote option for employers.

In the Notice of Proposed Rulemaking, DHS indicated that the I-9 would include a check box for employers to indicate they used remote Section 2 procedures on that individual I-9.  This would allow for an adjustment to audit procedures used by ICE, taking the process into account. Additionally, DHS notes that mandatory training to address fraudulent documentation and anti-discrimination training may be in play for those employers who use the alternative remote procedures. 

It is also important to note that the procedure may ultimately be limited to specific employers who are registered with and use E-Verify in a compliant manner, and that employers who have had recent unfavorable audits or may have otherwise had penalties levied against them for non-compliance could be excluded from participating.

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2. Simplifying Form Sections 1 and 2

Additional changes could include shortening or simplifying Form I-9 so Sections 1 and 2 appear on the same page, and Section 3 may become a supplement only used for situations such as rehire or expired work authorization.

3. Requirement of N/A in Empty Fields

ICE is proposing removal of the requirement to supply the N/A in empty fields. This means employers no longer need to use N/A in place of every blank space and would remove a lot of headaches.

Getting a Head Start on Form I-9 Compliance

For these and any additional changes, employers should be cognizant that new processes can cause confusion, which coupled with higher penalties can be very painful.

Employers should take the following steps to ensure they’re putting their best “good faith” effort at compliance forward:

  1. Create an SOP manual for their I-9 processes, to ensure continuity in the wake of employee attrition, and to present to ICE auditors in order to show them the employer has a solid and orderly plan regarding I-9 completion and storage.
  2. Conduct some sort of annual self-audit—a full annual audit may not be feasible, but a spot check used to identify training opportunities can be extremely helpful.
  3. Incorporate some sort of annual I-9 training for those who are asked to complete Form I-9.

While the form itself may not change annually, circumstances surrounding it may—like new ICE enforcement positions, for example. To get a head start on complying with potential changes, or improving your organization’s overall I-9 management process, visit Experian Employer Services to learn how we can help.

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