The US Department of Homeland Security recently announced significant changes to Form I-9, Employment Eligibility Verification, including the release of a new version as well as continued flexibility when it comes to reviewing identity and employment eligibility documents. Here is what employers need to know:
1. When are you required to and when can you start using the new form?
The new form is effective August 1, 2023. Employers have the option to continue using the previous form until November 1, 2023, but after that must use the revised form.
2. What is different about the new form?
The new form now has two sections (as opposed to three) and two new supplements, as follows:
- Section 1, which an employee completes and provides at the time of hire, identifies information about the employee and requires them to attest to whether they are a US citizen, noncitizen national, lawful permanent resident, or noncitizen (as opposed to the former “alien” designation) authorized to work in the United States.
- Section 1, the Preparer/Translator Certification portion of the current Form I-9, now in a separate, stand-alone supplement (Supplement A), is completed when an employee uses a preparer and/or translator to assist in completing the section.
- Section 3, the Reverification and Rehire portion of the current Form I-9, is now in a separate, stand-alone supplement (Supplement B). An employer completes the new Supplement B when verifying the continued employment authorization of an employee, and as before, the reverification must be completed before the documentation recorded in Section 1 or 2 expires. And also as before, 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.
Also, the new Form I-9 is easier to download and can be filled out on tablets and mobile devices.
Finally, the new form has revised the “Lists of Acceptable Documents” page to include acceptable receipt notices and guidance on automatic extensions of employment authorization documentation.
3. Can an employer still review and verify documents remotely?
Yes, if you’re a “qualified employer.” A qualified employer is one that participates in and is in “good standing” with E-Verify. To be in good standing, the company must (a) enroll in E-Verify with respect to all hiring sites in the United States, (b) maintain that enrollment in E-Verify with respect to all hiring sites in the United States, and (c) remain compliant with all E-Verify terms, conditions, and requirements. Note that remote verification applies only to remote hires. If your employee works part of the time on-site and part of the time remotely, the company must still examine the documents in person.
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 a document is two-sided).
- Examine the electronically transmitted copies of the Form I-9 documents (front and back, if a document is two-sided) to ensure that the documentation presented reasonably appears 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 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.
Upon completion of Form I-9, the company must also:
- Retain clear and legible copies of the Form I-9 documents (front and back if a 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.
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