The United States Department of Homeland Security (DHS) recently announced significant changes to the Employment Eligibility Verification (Form I-9), including the release of a new Form I-9 version, as well as alternative means of reviewing identity and employment eligibility documents.
About Form I-9
Form I-9 was created in 1986 to enable employers to verify an employee’s identity and authorization to work in the United States. All employers, regardless of size, are required to complete Form I-9 for all employees. Failing to do so, or doing so incorrectly, leads to significant fines, penalties, and in the most egregious circumstances, criminal penalties.
The New Form I-9
DHS’ new Form I-9 is effective Aug. 1, 2023, but employers may continue using the pre-Aug. 1, 2023 version Oct. 31, 2023. Starting Nov. 1, 2023, all employers must use the Form I-9 version dated Aug. 1, 2023.
The new Form I-9 contains the following changes:
- Separates Form I-9 into two sections and two supplements, as follows:
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- Section 1, which an employee completes, provides, at the time of hire, identifying information about the employee and requires them to attest to whether they are a United States citizen, noncitizen national, lawful permanent resident, or noncitizen authorized to work in the United States.
- Section 1, the Preparer/Translator Certification portion of the current Form I-9, now on a separate, standalone supplement (Supplement A), is completed when an employee uses preparers and/or translators to assist them in completing Section 1.
- Section 2, which an employer completes within three days of an employee’s hire, collects identifying information about the employer and information regarding the employee’s identity and authorization to work in the United States.
- Section 3, the Reverification and Rehire portion of the current Form I-9, is now on a separate, standalone supplement (Supplement B). An employer completes the new Supplement B when verifying the continued employment authorization of an employee. This reverification must be completed prior to the expiration date of an employee’s employment authorization and/or employment authorization documentation recorded in either Section 1 or Section 2 of Form I-9. Further, an employer may use Supplement B for an employee who is rehired within three years of the date of the initial completion of the Form, and to record a change of the rehired employee’s name.
- Reduces Sections 1 and 2 of Form I-9 to a single-sided sheet and merges multiple fields into fewer fields.
- Replaces the phrase “alien authorized to work” in Section 1 of Form I-9 to “noncitizen authorized to work,” and clarifies the difference between “noncitizen national” and “noncitizen authorized to work.”
- Ensures that Form I-9 can be completed on tablets and mobile devices.
- Removes certain features to ensure that Form I-9 can be easily downloaded.
- Removes the requirement to enter “N/A” in certain fields.
- Updates the notice at the top of Form I-9 that explains how to avoid discrimination in the Form I-9 process.
- Revises the “Lists of Acceptable Documents” page of Form I-9 to include acceptable receipt notices and guidance on automatic extensions of employment authorization documentation.
- Updates the Form I-9 instructions as follows:
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- Reduces the instructions from 15 pages to 8 pages.
- Adds definitions of “key actors” in the Form I-9 process.
- Adds instructions for using the new checkbox for employers who choose to examine Form I-9 documentation under an alternative procedure.
- Removes the abbreviations charts and relocates the abbreviations to M-274, Handbook for Employers: Guidance for Completing Form I-9.
Remote Form I-9 Verification Procedure Now Permissible for “Qualified Employers”
The Form I-9 process has long mandated employers to examine the original documentation presented by a new employee from the Lists of Acceptable Documents or acceptable receipt notice (Form I-9 Documents) in the physical presence of the new employee, to confirm that the Form I-9 Documents reasonably appear to be genuine and to relate to the new employee.
While an employer’s examination of original documents in the physical presence of a new employee remains a requirement, DHS has an alternative procedure that permits qualified employers to conduct remote verification of Form I-9 and Form I-9 Documents.
Who is a Qualified Employer?
Only a qualified employer, defined as one that participates in E-Verify and is in good standing with it, is permitted to use remote Form I-9 verification. E-Verify is a DHS-operated electronic employment authorization and identity verification system in which an employer may voluntarily enroll for the purpose of submitting information from Form I-9 and Form I-9 Documents to DHS. DHS then reviews the information against multiple federal databases to verify a new employee’s identity and eligibility to lawfully work in the United States.
An employer who does the following is considered a participant in good standing with E-Verify:
- enrolls in E-Verify with respect to all hiring sites in the United States;
- maintains enrollment in E-Verify with respect to all hiring sites in the United States;
- remains compliant with all E-Verify terms, conditions, and requirements.
A qualified employer who offers remote verification to new employees must do so consistently for all employees, but remote verification applies to remote hires only. Physical examination procedures continue to apply to all onsite or hybrid employees. An employer is not permitted to adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin.
All employers that are not considered “qualified” must continue to inspect the original Form I-9 Documents in the physical presence of an employee.
How Does a Qualified Employer Conduct a Form I-9 Remote Verification?
To conduct a remote verification, a qualified employer must, within three business days of an employee’s first day of employment:
- Receive electronically transmitted copies of the Form I-9 Documents from the employee (front and back, if the document is two-sided).
- Examine the electronically transmitted copies of the Form I-9 Documents (front and back, if the document is two-sided) to ensure that the documentation presented reasonably appears to be genuine.
- Conduct a live video interaction with the employee presenting the Form I-9 Documents originally transmitted to the employer to ensure that the documentation reasonably appears to be genuine and related to the employee.
- Indicate on Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 of Form I-9 or for recertification.
- Retain clear and legible copies of the Form I-9 Documents (front and back, if the document is two-sided).
- Make available the clear and legible copies of the Form I-9 Documents presented by the employee for document examination in connection with the employment eligibility verification process when a Form I-9 audit or investigation is performed by a relevant federal government official.
Conclusion
DHS’ permanent remote verification process for Form I-9 purposes is welcome news for employers with employees working remotely or at other employer facilities across the United States. Often, employers are not equipped with the nationwide resources to conduct in-person verifications for these employees, which in the past has led to serious Form I-9 compliance-related issues. It is critical, however, for employers that elect to participate in remote verifications strictly adhere to the very specific remote verification procedures; comply with all E-Verify terms, conditions, and requirements; and apply the remote verification policy in a consistent, non-discriminatory manner.
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