October 31, 2023Client Alert

Form I-9 Alert: New Form and Remote I-9 Documentation Examination Procedures

Starting November 1, 2023, employers will be required to use the latest version of Form I-9 (edition date 08/01/23), which United States Citizenship and Immigration Services (USCIS) released earlier this year. A revised Spanish-language Form I-9 is available for use only in Puerto Rico. The new Form I-9 applies to new hires only; employers should not complete new Forms I-9 for current employees.

The new Form I-9 is available on USCIS’ website, along with an updated 8-page set of instructions. USCIS also released an updated Handbook for Employers, a valuable resource for those handling Form I-9 issues. 

In addition to the new Form I-9, employers should be aware that, as of August 1, 2023, they may remotely examine employees’ Form I-9 documents if they are enrolled in good standing with E-Verify. This is a welcome change for employers with remote employees and for organization that moved to remote I-9 document verification during the COVID-19 pandemic. Employers that choose to offer this alternative procedure to new employees at an E-Verify hiring site must do so consistently for all new employees at that site. However, employers may choose to offer this alternative procedure for remote hires only, while continuing to conduct physical in-person examination procedures to employees who work onsite or in a hybrid capacity, provided the distinction is not made for a discriminatory purpose.

Remote Document Examination Procedures for E-Verify Employers:

  • Instruct the employee to transmit a copy of the document(s) for review.
  • Examine copies of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine and relates to the employee.
  • Conduct a live video interaction with the employee presenting the document(s) to ensure that the documentation reasonably appears to be genuine and relates to the employee. The employee must present the same documents during the live video interaction that were previously transmitted for review.
  • Retain a clear and legible copy of the documentation.
  • On the Form I-9, check the box to indicate that you used an alternative procedure in the Additional Information field in Section 2.
  • If completing the remote documentation examination for a rehire or reverification, check the box on Form I-9 in Supplement B.

While basic I-9 requirements remains the same, the new Form I-9 and instructions include several notable changes.

Form Changes:

  • Reduced Sections 1 and 2 to a single sheet. No previous fields were removed. Multiple fields were merged into fewer fields when possible, such as in the employer certification.
  • Moved the Section 1 Preparer/Translator Certification area to a separate Supplement A that employers can use when necessary. This supplement provides three areas for current and future preparers and translators to complete as needed.
  • Moved Section 3 Reverification and Rehire to a standalone Supplement B that employers can use for rehire or reverification. This supplement provides four areas for current and subsequent reverifications. Employers may attach additional supplements as needed.
  • Removed use of “alien authorized to work” in Section 1, replaced it with “noncitizen authorized to work” and clarified the difference between “noncitizen national” and “noncitizen authorized to work.”
  • Ensured the form can be filled out on tablets and mobile devices by downloading onto the device and opening in the free Adobe Acrobat Reader app.
  • Removed certain features to ensure the form can be downloaded easily. This also removes the requirement to enter N/A in certain fields.
  • Improved guidance to the Lists of Acceptable Documents to include some acceptable receipts, as well as guidance and links to information on automatic extensions of employment authorization documentation.
  • Added a checkbox for E-Verify employers to indicate when they have remotely examined Form I-9 documents.

Form I-9 Instruction Changes:

  • Reduced length from 15 pages to 8 pages.
  • Added definitions of key actors in the Form I-9 process.
  • Streamlined the steps each actor takes to complete their section of the form.
  • Added instructions for the new checkbox to indicate when Form I-9 documents were remotely examined.
  • Removed the abbreviations charts and relocated them to the M-274 (Handbook for Employers).

Given the new form and verification procedures, employers should use particular care when handling Form I-9 and other immigration-related employment processes and practices. Annual internal Form I-9 audits and periodic third party Form I-9 audits by qualified professionals are recommended. Employers not currently enrolled in E-Verify should also evaluate whether program use may be beneficial.

For more details, please join us for our complimentary Form I-9 Update webinar on December 4 or contact Kelly Fortier, Kelly Rourke, or Carrie Ziegler Thomas with questions or concerns.

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