As announced by United States Citizenship and Immigration Services (USCIS) on July 21, 2023, a new Form I-9 was issued for public use Aug. 1, 2023. Employers may continue to use the older Form I-9 (Rev. 10/21/19) through Oct. 31, 2023, and beginning Nov. 1, 2023, Form I-9 Edition 08/01/23 will become mandatory. Employers must complete a Form I-9 for all employees hired after Nov. 6, 1986, and retain all completed I-9s for active employees. Upon termination of employment, employers must retain the employee’s Form I-9 for the later of one year after termination or three years after the date of hire.

Form I-9 Edition 08/01/23 and New Alternative I-9 Document Examination Procedure

Prior to Aug. 1, 2023, regulations and I-9 instructions required all employers to physically examine the I-9 documentation presented by employees to ensure the documents reasonably appeared to be genuine and related to the employee. The COVID-19-related I-9 flexibilities ended July 31, 2023, and the U.S. Department of Homeland Security (DHS) authorized a permanent alternative to physical inspection of I-9 documents.

The new version includes an alternative procedure for employers using E-Verify to remotely examine employee I-9 documents. DHS confirmed that only “qualified employers” that participate in E-Verify who are in good standing may continue to review documents electronically after Aug. 1, 2023. Within three business days of an employee’s first day of employment, a qualified employer or its authorized representative may now complete Form I-9 via the alternative procedure and complete the following:

1. Ensure the employee provides copies of their choice of acceptable I-9 documentation for verification of identity and work authorization (front and back side of document if applicable);
2. Examine copies of Form I-9 documents or an acceptable receipt to ensure the documentation reasonably appears to be genuine and relates to the employee;
3. Conduct a live video interaction with the employee presenting the same original document(s) as previously provided to ensure the documentation reasonably appears to be genuine and relates to the employee;
4. Indicate on the Form I-9, by checking the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or Section 3 for reverification, as applicable, OR if using the prior I-9 version (Rev. 10/21/19) until Oct. 31, 2023, notate “alternative procedure” in the Additional Information field in Section 2;
5. Retain a clear and legible copy of the documentation (front and back if two-sided) presented by the employee; and
6. In the event of a Form I-9 government audit or investigation, make available, along with the Form I-9, the clear and legible copies of the I-9 documentation presented by the employee.

Using the alternative procedure is optional and qualified employers can continue to physically examine I-9 documents. If a qualified employer chooses to offer the alternative procedure to some employees at an E-Verify hiring site, the employer must do so consistently for all employees at that site. A qualified employer, however, may choose to offer the alternative procedure for remote hires only but continue to apply physical in-person examination procedures to all employees who work onsite or in a hybrid capacity, as long as the employer does not adopt that practice for a discriminatory purpose or treat employees differently based on a protected characteristic.

New Alternative Procedure and Updates to Prior Form I-9 Completed Under COVID-19 Flexibilities

DHS’s temporary I-9 flexibilities due to COVID-19 ended July 31, 2023. Prior to Aug. 30, 2023, employers must complete in-person physical I-9 document inspection for all employees hired between March 20, 2020, and July 31, 2023, whose documents have previously been virtually or remotely examined due to COVID-19 flexibilities. Employers participating in E-Verify that created an E-Verify case for new employees at the time of their hire and that virtually examined I-9 documents during COVID-19 flexibilities are eligible to use the new alternative procedure starting Aug. 1 to satisfy the physical document review that is required by Aug. 30, 2023.

Employers that do not participate in E-Verify may no longer review I-9 documents remotely after July 31, 2023, and they must review the original documents previously reviewed remotely under COVID-19 flexibilities in-person by Aug. 30, 2023.

Employers who were not yet enrolled in E-Verify at the time they conducted a virtual review of I-9 documentation under COVID-19 flexibilities must physically examine the employee’s documentation to complete the required I-9 update by Aug. 30, 2023. These employers cannot avoid in-person document review by registering for E-Verify at this time. Going forward, employers newly enrolled in E-Verify are eligible to use the new alternative procedure.

Summary of Changes to I-9 Edition 08/01/23

USCIS made the following updates to Form I-9:

• Reduced Sections 1 and 2 to a single-sided sheet. No previous fields were removed. Rather, multiple fields were merged into fewer fields when possible.
• Moved the Preparer/Translator Certification from Section 1 to a separate supplement (Supplement A) that employers can provide to employees when necessary. Employers may attach additional Supplement A sheets as needed to the I-9.
• Moved Section 3 Reverification and Rehire to a separate supplement (Supplement B) that employers can complete as needed for reverification of an employee’s work authorization or for rehiring an employee with an existing I-9. Employers may attach additional Supplement B sheets as needed to the I-9.
• Removed use of “alien authorized to work” in Section 1 and replaced it with “noncitizen authorized to work” as well as clarified the difference between “noncitizen national” and “noncitizen authorized to work.”
• Ensured the form can be filled out on tablets and mobile devices and removed certain features to ensure the form can be downloaded easily, including the requirement to enter “N/A” in certain fields.
• Revised the Lists of Acceptable Documents page to include some acceptable receipts and guidance and links to information on automatic extensions of employment authorization documentation.
• Added a checkbox for eligible employers to select if the employee’s I-9 documentation was examined under a DHS-authorized alternative procedure rather than via physical examination. The I-9 instructions include guidance for use of the new checkbox.

The updated Form I-9 and new alternative procedure is a welcome change for employers with an increasingly remote workforce. To avoid the I-9 violation fine of up to $2,507 per violation as well as a government audit and investigation, employers should ensure compliance with DHS’s requirements of the new alternative procedure and with the E-Verify terms and conditions.