Introducing - The New Form I-9
A lot changed in the world in 2020 due to the global COVID-19 pandemic and many standards had to be relaxed or suspended as a result. The requirement for all U.S. employers to have new employees complete the Form I-9 was no different, and with precautions necessary due to COVID-19, flexibility was required when it came to an in-person physical examination of identity and employment eligibility documents.
To address the need for flexibility, beginning on March 20, 2020, the Department of Homeland Security (DHS) allowed employers to remotely verify identity and employment eligibility documents for new employees due to proximity precautions related to COVID-19 – specifically for employers enforcing remote work environments. These flexibilities continued into 2021 and 2022.
In October 2022, the COVID-19 flexibilities were extended through July 31, 2023, at which time the flexibilities were set to expire. At the same time, employers were instructed to continue using the existing version of the Form I-9, published October 21, 2019, with an expiration of October 31, 2022, until a new form was developed.
Since that time, many employers have held out hope the date would be extended – again – because of the ability to remotely verify the identity and employment eligibility documents for the Form I-9 which allowed employers to expand hiring pools and reduce traffic in their offices. DHS also opened a public comment period in 2022 asking for feedback on their Notice of Proposed Rulemaking (NPRM) regarding the Form I-9 and alternatives to the in-person physical examination process for documentation verification.
However, on May 4, 2023, DHS and the U.S. Immigration and Customs Enforcement (ICE) reminded employers that the July 31, 2023, deadline was soon approaching, and clarified the requirement for employers to perform all required in-person physical examination of identity and employment eligibility documents. They also reminded us of the requirement to go back and complete an in-person verification of the identity and employment eligibility documents for all employees hired between March 20, 2020, and July 31, 2023, for which the COVID-19 flexibilities were used, no later than August 30, 2023
Then, on July 21, 2023, DHS and ICE announced in the Federal Register an updated version of the Form I-9 as well as a new alternative procedure for verifying identity and employment eligibility documents (LINK).
Revised Form I-9:
The new form can be used by employers beginning on its publication date of August 1, 2023, but is not yet required. What this means is the older version of the form – the one that expired on October 31, 2022 – can still be used through October 31, 2023. The new form will be required for all employers beginning November 1, 2023.
Here is a summary of changes published by the United States Citizenship and Immigration Services (USCIS) on their website (LINK):
Section 1, Preparer/Translator Certification, is now a standalone document (Supplement A) that employers can provide to employees when necessary.
Section 3, Reverification and Rehire, is now a standalone document (Supplement B) that employers can use if re-verification is required.
The Form I-9 can now be filled out on tablets and mobile devices as well as easily downloaded.
The term “alien authorized to work” in Section 1 has been replaced with “noncitizen authorized to work.”
The Lists of Acceptable Documents page now includes acceptable receipts, as well as guidance and links to information on automatic extensions of employment authorization documents.
A box has been added that eligible employers need to check if the Form I-9 documentation was examined using the new alternative verification procedure.
The instructions have been reduced from 15 pages to eight.
DHS Alternative Procedure aka Virtual Verification:
As of August 1, 2023, qualified employers will be allowed to complete a virtual verification of identity and employment eligibility documents for new employees (LINK).
What does this mean for qualified employers? We’ve broken down the process for you:
New hires must still complete Section 1 of the Form I-9 on or before their first day of employment – this can be completed on paper or electronically.
Within the first three (3) days of employment, the new employee must provide a copy of the front and back (if the document(s) is two-sided) of their choice of identity and employment eligibility document(s) from List A, or List B and C. The documentation can be sent electronically but be sure to collect the documentation securely.
Why securely? Because the documentation falls under the category of Personal Identifiable Information (PII) and must be protected.
Once the copies of the identity and employment eligibility documentation have been transmitted, the Employer (or the Authorized Representative) must conduct a virtual live meeting or video call with the new employee within the first three (3) business days of the date of hire. During the video call, the new hire must present the same identity and employment eligibility documentation previously provided in Step 2 to the camera (both front and back) so the employer can virtually verify the documentation is genuine and related to the individual.
Following the virtual verification process, the employer must then complete the E-Verify check within the same three (3) business days from date of hire.
This is excellent news for many employers and allows for continued remote or virtual verification, as was allowed during COVID-19 flexibilities.
As stated above, only qualified employers are authorized to use the alternative procedure by DHS.
Qualified employers are those who are enrolled in and are in good standing with E-Verify, and those which meet the following requirements:
They have enrolled in E-Verify for all hiring sites in the United States that use the alternative procedure.
They are compliant with all E-Verify program requirements.
They continue to be enrolled in E-Verify and in good standing at any time when they use the alternative procedure.
It is important to note the alternative procedure does not change any timelines associated with completing the Form I-9 or the E-Verify process:
Employees must still continue to complete Section 1 of the Form I-9 on or before their first day of employment;
Employers or their Authorized Representatives must still complete Section 2, including verification of identity and employment eligibility documentation (whether using an in-person verification or the DHS approved alternative procedure) within three (3) business days from date of hire; and,
The E-Verify check must be run within three (3) business days of date of hire.
Additionally, DHS has provided guidance for those employees who are unwilling or unable to submit documentation via the alternative procedure, which states that employers are required to allow those employees to submit documents for a physical inspection.
Employers who are not enrolled and/or do not plan to be enrolled in E-Verify will not be authorized to use the DHS alternative procedure and must complete all documentation verifications in-person.
COVID-19 Flexibilities Expiration
With all of the excitement about the new form and the alternative procedure, we cannot forget that employers are still required to complete a re-verification of all workers hired between March 20, 2020, and July 31, 2023, whose identity and employment eligibility documents were verified virtually.
This requirement must be met no later than August 30, 2023!
The good news is that DHS has authorized use of the alternative procedure detailed above by qualified employers to complete the re-verification of those employees.
If an employer was not enrolled in E-Verify at the time of the remote verification for any employees hired between March 20, 2020, and July 31, 2023, they are not eligible to use the alternative procedure, even if they have recently enrolled. Those employers will need to complete the in-person verification process with those employees.
In-Person Re-Verification Process
For those employers completing an in-person re-verification of identity and employment eligibility documents, USCIS has provided an example of the notation process here.
Here’s how to go about it:
Have your employee come in to your office and instruct them to bring their identity and employment eligibility documents for an in-person verification.
If the documents originally presented by the employee are now expired, but were unexpired at the time of the remote inspection at their hire, the employer can still re-verify with the expired documentation and should not request a new document.
If the employee no longer has the same documents they presented at their time of hire, they can provide different documentation as long as it meets the Acceptable Documents requirements for the Form I-9, which include establishing identity and employment eligibility, and they must be original, unexpired, and relate to the individual presenting them.
In this instance, the employer must complete a new Section 2, which can be on the current Form I-9 (dated 10/21/2019; expires 10/31/22).
Complete an in-person physical examination of the documents presented by the employee, both front and back, and if the documents are unexpired, original, and reasonably relate to the employee, you can move to the next step.
Alternative Procedure for Re-Verification:
If you are a qualified employer and choose to use the alternative procedure, you can follow the steps listed above in the Virtual Verification section.
An example of the notation requirements from USCIS when completing the alternative procedure are shown here if the same person who completed the Remote Inspection is completing the re-verification.
If a different employer representative is completing the re-verification, USCIS has not provided an example, however, it stands to reason employers should follow the same process as the above example, with the exception being that the new employer representative should write their full name and title instead of just initials.
Can an employer choose not to complete the in-person or alternative procedure re-verification process?
It is not recommended. In the event of an I-9 audit, this will be something an auditor will catch and will likely document as a violation. The penalties for first time offenses and substantive violations or uncorrected technical errors on the Form I-9 range from $252 - $2,507 in 2023 (LINK). For second offenses and subsequent violations, the range is $1,161 - $2,322.
This is not an all encompassing list of the fines that may be charged as a result of violations found during an I-9 audit. Best practice and prudent business is to comply with the requirements and complete the required in-person or alternative procedure re-verification for employees.
The Society for Human Resource Management (SHRM) has recommended that employers develop a corporate policy surrounding their processes for COVID-19 flexibilities and subsequent re-verification process, which can be provided during an audit to show the employer’s intentions for compliance with the law.
Employer Next Steps:
Complete the in-person examination or alternative procedure virtual verification of identity and employment eligibility documentation for all employees hired using the COVID-19 flexibilities between March 20, 2020, and July 31, 2023.
If you are interested in the alternative procedure for verifying identity and employment eligibility documentation, and are not already enrolled in E-Verify, navigate to the E-Verify website for more information: LINK or contact Vida HR.
Begin using the new Form I-9 version no later than November 1, 2023.
LINK to form: I-9 Employment Eligibility Verification (uscis.gov)
Link to Instructions: I-9, Employment Eligibility Verification (uscis.gov)
If you are a Vida HR client, please contact your HR Business Partner or our Client Success Manager for more information.