Three key changes are coming to Form I-9. First, as of July 31, 2023, employers will no longer be permitted to verify Form I-9 documents remotely. Employers who engaged in remote verification of Form I-9 documents will be required to inspect identity and employment eligibility documents that were initially inspected remotely. This must be completed by August 30, 2023. Second, beginning on August 1, 2023, certain employers who are enrolled in e-Verify will be permitted to conduct verification of Form I-9 documents electronically and with a live video call interaction. Third, a revised Form I-9, which will be reduced to a single-sided sheet consisting of only Sections 1 and 2, will be available for use on August 1, 2023, and employers will be required to use that revised version beginning on November 1, 2023.
A. Employers will no longer be permitted to verify Form I-9 documents remotely.
Since March 20, 2020, U.S. Immigration and Customs Enforcement (“ICE”) has permitted employers to verify Form I-9 documents remotely for workers working exclusively in remote settings due to COVID-19 related precautions. Remote inspection may have involved video, fax, or email verification. These temporary flexibilities to the general rule that all Form I-9 documents required an in-person physical inspection is set to end on July 31, 2023.
Employers who utilized the temporary flexibilities must inspect again the identity and employment eligibility documents for those subject workers by August 30, 2023. One method to satisfy this additional inspection requires an in-person physical inspection of the identity and employment eligibility documents, along with a proper notation on Form I-9 with the updated in-person inspection. This method has resulted in a number of questions ranging from the logistics of performing an in-person inspection when the remote worker is not physically near any of the employer’s facilities, to who can serve as an authorized representative of the employer for purposes of performing an in-person inspection, to how to update Form I-9 when signing it electronically is not an option. While, for instance, an authorized representative can be anyone who the employer authorizes to complete the in-person physical examination of the Form I-9 documents, even if they are unpaid and otherwise completely unaffiliated with the employer, employers remain fully responsible for any errors or omissions committed by any outside individual they authorize to complete the in-person physical examination. Employers must also be mindful of state laws that may narrow the federal interpretation of who can serve as an authorized representative.
Another method that the U.S. Department of Homeland Security (“DHS”) just announced to satisfy the additional inspection involves verifying Form I-9 documents electronically and with a live video call interaction, however, that option is limited to certain employers who are enrolled in e-Verify and created a case through that system for the remote worker when their Form I-9 documents were initially inspected. This option is discussed in more detail below.
B. Certain employers who are enrolled in e-Verify will be permitted to conduct verification of Form I-9 documents electronically and with a live video call interaction beginning on August 1, 2023.
On July 21, 2023, DHS released a final rule providing certain employers with an alternative procedure to verifying identity and employment eligibility documents electronically and with a live video call interaction. Employers who are qualified may choose to use this optional alternative procedure. Qualified employers are those that are in good standing in e-Verify. Good standing requires employers to be enrolled in e-Verify for all hiring sites in the U.S. that use this alternative procedure and to remain in compliance with all e-Verify requirements. Qualified employers who choose to use this alternative procedure may apply it consistently to all workers or to only those who are fully remote, however, a worker may decline to participate in this alternative procedure and submit documentation for an in-person physical inspection. Employers are prohibited from using the alternative procedure for a discriminatory purpose, and they may not treat workers differently based on their citizenship, immigration status or national origin.
Use of the alternative procedure does not change the requirement that a worker’s identity and employment eligibility must be verified within three days of the first day of employment, or that either the employer or its authorized representative perform the document inspection. The alternative procedure involves the following steps:
- The worker transmits a copy of both sides of the identity and employment eligibility document(s) to the employer. E-mail, for instance, may be used if the copy is clear and legible.
- Both the employer or its authorization representative and the worker must attend a live video interaction. At that time, the employer or its authorized representative must examine the documentation that the worker transmitted to ensure that it reasonably appears to be genuine, relate to the worker and unexpired.
- The employer or its authorized representative must indicate on Form I-9 that the alternative procedure was used to complete Section 2 or for reverification.
- The employer must retain clear and legible copies of all documents that the worker presented to satisfy Form I-9, and should there be an audit, provide access of those copies to ICE upon request.
Importantly, the alternative procedure document retention must be consistent with requirements found in the Code of Federal Regulations. In addition, this document retention requirement applies only to workers from whom the employer used the alternative procedure, not all employees of the employer. Employers may begin to use the alternative procedure on August 1, 2023, however, it will be only be applicable to workers hired on or after that date or when the employer became qualified, whichever is later.
C. Certain employers who were enrolled in e-Verify during the temporary flexibilities may use the alternative procedure to satisfy the additional inspection requirement.
As discussed above, employers who utilized the temporary flexibilities must inspect again the identity and employment eligibility documents for those subject workers by August 30, 2023. Qualified employers may use the alternative procedure to satisfy this requirement if all the following conditions are met:
- The qualified employer was enrolled in e-Verify at the time they engaged in remote verification of Form I-9 documents for Section 2 or reverification.
- The qualified employer created an e-Verify case for that worker (except for reverification).
- The qualified employer engaged in the remote verification of Form I-9 documents between March 20, 2020 and July 31, 2023.
Qualified employers who use the alternative procedure to satisfy the additional inspection requirement must add “alternative procedure” with the date that the steps under the alternative procedure are completed to either the Section 2 Additional Information field on Form I-9 or in Section 3 (in case of a reverification).
Employers who were not enrolled in e-Verify at the time they utilized the temporary flexibilities are not eligible to use the alternative procedure to satisfy the additional inspection requirement.
D. A revised Form I-9 will be available for use on August 1, 2023.
In conjunction with the July 21, 2023 release of the final rule regarding the alternative procedure, DHS also announced that a revised Form I-9 will be released and available for use on August 1, 2023. The revised Form I-9 will be reduced to a single-sided sheet consisting of only Sections 1 and 2. Section 3 will be available as an addendum. The revised Form I-9 will include a box in Section 2 that can be checked if a qualified employer used the alternative procedure.
DHS is requesting that all employers begin to use the revised Form I-9 beginning on August 1, 2023. Employers may, however, continue to use the prior version of Form I-9 (with an edition date of October 21, 2019) through October 31, 2023. Use of the revised Form I-9 will become mandatory on November 1, 2023.
Employers should not complete the revised Form I-9 for current employees who already have a properly completed Form I-9, unless reverification applies
E. Summary of relevant dates.
The relevant dates for the Form I-9 changes are:
- July 31, 2023: Employers will no longer be permitted to verify Form I-9 documents remotely.
- August 1, 2023: Qualified employers will be permitted to conduct verification of Form I-9 documents electronically and with a live video call interaction.
- August 1, 2023: A revised Form I-9 will be available for use on U.S. Citizenship and Immigration Services’ website.
- August 30, 2023: Employers who engaged in remote verification of Form I-9 documents must inspect identity and employment eligibility documents again that were initially inspected remotely by this date.
- November 1, 2023: Employers must use the revised Form I-9 (with an edition date of August 1, 2023) by this date.
Employers should begin preparations for complying with the Form I-9 changes by contacting their Thompson Coburn attorney to review their I-9 policies.
Carlos A. Ortiz is a partner in Thompson Coburn’s employment litigation practice.