On Friday, July 21, the United States Citizenship and Immigration Services, (USCIS), announced the release of the long-awaited new Form I-9, which is to occur on August 1. A new and much anticipated remote process will be rolled out concurrently with the new I-9. Those who used the COVID-19 relaxed procedures will at least have some familiarity with how the process works, as it is virtually the same, with added requirements. With the new procedure, the employer must be enrolled and in good standing with E-Verify, and must retain copies of documentation presented as part of the procedure. New guidance will be published in the Federal Register detailing the employer process.
Within 3 business days of an employee’s first day of employment, a qualified employer, (or an authorized representative acting as such on an employer’s behalf, such as a third party vendor), who chooses to use the alternative procedure must:
- Examine copies, (front and back if the document is two-sided), of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
- 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;
- 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;
- Retain, consistent with applicable regulations, a clear and legible copy of the documentation, (front and back if the documentation is two-sided); and
- In the event of a Form I-9 audit or investigation by a relevant federal government official, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility process.
The guidance also states that qualified employers may choose to opt for this procedure or continue with any compliant procedures they currently use. However, if the alternative procedure is used for some employees at a specific E-Verify hiring site, it must be used for all employees at that site.
Additionally, relief has been offered for employers who used COVID-19 temporary flexibilities to complete I-9s. New guidance states that qualified employers may use the alternative procedures method to satisfy the physical review requirement for those documents that had initially been reviewed remotely. Any qualified employers need only meet the following conditions to employ this process:
- Were enrolled in E-Verify at the time they performed a remote examination of an employee’s Form I-9 documentation for Section 2 or reverification while using the COVID-19 flexibilities
- Created an E-Verify case for that employee, (except for reverification),
- Performed the remote inspection between March 20, 2020 and July 31, 2023
All employers that use the alternative procedure instead of physically examination as described above must follow the steps of the alternative procedure and add “alternative procedure” with the date of examination, (i.e. the date the employer performed a live video interaction as required under the alternative procedure), to the Section 2 Additional Information field on the Form I-9, or in Section 3, as appropriate.
As part of this procedure, E-Verify has indicated they will be updating their tutorial to include fraud-awareness and anti-discrimination components. Those who have previously passed the tutorial need not retake.
New I-9 Form
As mentioned above, the new Form I-9 will be available on August 1. To review, a number of changes will be incorporated with the introduction of the new form. The changes are outlined below:
- Reduces Sections 1 and 2 to a single-sided sheet;
- Is designed to be a fillable form on tablets and mobile devices;
- Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;
- Moves Section 3, Reverification and Rehire, to a standalone supplement that employers can print if or when rehire occurs or reverification is required;
- Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation;
- Reduces Form instructions from 15 pages to 8 pages; and
- Includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination.
While the new form release will be August 1, employers may continue using the current “expired” form until October 31. All employers must use the new I-9 form beginning November 1, 2023.
Your partners at Experian Employer Services will continue to monitor the regulatory landscape surrounding this procedure and provide timely updates as they become available.