On July 21, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that it would publish a revised Form I-9, Employment Eligibility Verification. In addition, the U.S. Department of Homeland Security (DHS) announced a final rule establishing an optional remote procedure for employers meeting certain requirements to complete the I-9 employment verification process.

The effective date of the new Form I-9 and alternative procedure rule is August 1, 2023. Employers may use the current Form I-9 (edition date 10/21/2019) until October 31, 2023. Effective November 1, 2023, employers must use the new Form I-9 (edition date 8/01/2023).

Quick Hits

• USCIS will release a revised Form I-9 on August 1, 2023.
• DHS announced a final rule that will provide certain employers with an optional remote employment verification procedure.

The new rule will provide certain employers with a remote means of examining I-9 documentation and completing the Form I-9. USCIS has outlined the following requirements for employers to qualify to use this alternative procedure:

• Employers must be enrolled in E-Verify, and remain in good standing and compliance with all requirements of the E-Verify program.
• Employers must complete an E-Verify training as part of the E-Verify enrollment process.
• Employers must use the alternative procedure consistently for all employees at a given worksite or use it only for remote employees, so long as the employers do not “adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin.”

The alternative procedure will require a qualified employer to do all of the following within three business days of an employee’s start date:

• Examine all Form I-9 documents (including the front and back of any double-sided documents) to ensure that the documentation “reasonably appears to be genuine.”
• Conduct a live video interaction with the employee to verify that the documentation “reasonably appears to be genuine and related to the individual.”
• Check a box on the new version of Form I-9 indicating that an alternative procedure was used to examine I-9 documentation (or, if using the 10/21/2019 edition of the Form I-9 during the August 1, 2023–October 31, 2023 grace period, the employer must write “alternative procedure” in the Additional Information field in Section 2).
• Retain a “clear and legible” copy of documentation (including the front and back of any double-sided documents).

In addition to completing the above steps, employers must be able to offer “clear and legible” copies of any I-9 documentation to a federal government official in the event of a Form I-9 audit or investigation.

A qualified employer that previously took advantage of remote COVID-19 document examination flexibilities may use this alternative procedure starting August 1, 2023, to satisfy current physical examination requirements by the August 30, 2023, deadline and does not need to create a new case in E-Verify, provided that

• the employer was enrolled in E-Verify at the time that employer previously conducted a remote examination of the employee’s Form I-9 documentation;
• the employer “created an E-Verify case for that employee (except for reverification)”; and
• the employer “performed the remote inspection between March 20, 2020, and July 31, 2023.”

The employer must also indicate its use of the alternative procedure by adding “alternative procedure,” as well as the date on which the employer performed a live video interaction with the employee (as required in the alternative inspection process), to the “Additional Information” field in Section 2 of Form I-9 or in Section 3 “as appropriate.”

The new Form I-9 is designed to be more user-friendly, with the ability to complete the form on a tablet or mobile device. The length of the form has been reduced to a single-sided sheet, and the number of pages of instructions has been changed from fifteen pages to eight pages. USCIS has also revised the Lists of Acceptable Documents page with certain receipt notices, and included guidance on when certain Employment Authorization Documents (EADs) may be automatically extended.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will provide updates on the Immigration blog as additional information becomes available.