The Department of Homeland Security (“DHS”) announced on July 21, 2023, they will post a revised version of the Form I-9 on August 1, 2023. DHS also announced an improved version remote verification flexibility using video for E-Verify employers, both for clearing I-9s created during the pandemic and in the future.
Major changes to Form I-9 to be posted on August 1
- Employers can use the current Form I-9 (10/21/19) until October 31, 2023
- Effective November 1, 2023, all employers must use the new Form I-9
- Reduces Sections 1 and 2 to a single-sided sheet
- Trainer/Translator Certification Supplement
- Supplement for Reverification and Rehiring
- Acceptable additional documents and guidance for automatic extensions
- For E-Verify employers, includes a box to indicate special remote verification of documents
New Alternative Procedure Enabling Remote Verification for Employers E-Verify Just
Effective August 1, 2023, employers enrolled in E-Verify will be able to follow a new flexible procedure for remotely verifying supporting I-9 documents.
- Step 1: Applicant (post-offer) or Employee copies or photographs their supporting I-9 documents (front and back) and mails them to the employer (or through another form of transmission).
- Step 2: The employer reviews the documents to ensure they appear reasonably genuine.
- Step 3: The employer conducts a live video interaction (i.e., Zoom, Teams, Google Meet, FaceTime, etc.) with the candidate or employee to ensure that the documentation is reasonably related to them. The candidate or employee must present the same documents already transmitted to the employer a second time during the face-to-face interaction.
- Step 4: Employer checks the alternative procedure box on Supplement B of the new form I-9 for new employees hired on or after August 1, 2023. Or, if the employee was hired during the pandemic, the employer notes “Alternative Procedure” in the additional information box on the previous form I-9 and completes this task by August 30, 2023.
- Step 5: The employer retains supporting documents (paper or digital) and attaches them to the I-9. (In the past, only List A documents were copied. With the new remote flexibility, the E-Verify employer must now copy and retain all List A or List B and C documents.)
Clearing Pandemic I-9s for Employers E-Verify – Through August 30
Employers who were participating in E-Verify and created an E-Verify case for employees whose documents were examined remotely during the COVID pandemic (March 20, 2020 – July 31, 2023), can now choose to use the new alternative live video procedure from August 1, 2023 to satisfy the document physical examination requirement by August 30, 2023.
The employer must note “alternative procedure” with the date of the video exam in the additional information box on page 2 of the previous version I-9. The employer must not create a new case in E-Verify.
E-Verify employers hiring remote employees on or after August 1, 2023 must use the new Form I-9 and complete Supplement B that designates the alternate procedure.
Non-E-Verify Employers Clearing Pandemic I-9s By Aug.
Employers who were not enrolled in E-Verify during COVID-19 flexibilities must complete an in person physical exam by August 30, 2023 for all employees hired during the pandemic.
Avoiding Discrimination Using E-Verify
Employers should be aware of the following key issues:
- E-Verify should only be used on new hires. The only exception is employees working under a covered federal contract that requires mandatory E-Verify.
- An I-9 should never be filled out until an offer is made and E-Verify should never be used until the I-9 is completed.
- Employers who were not enrolled in E-Verify at the time they initially performed a remote review of an employee’s documents under the COVID-19 flexibilities between March 20, 2020 and July 31, 2023 cannot use the qualifying video flex on employees hired since then, unless the employee was hired after the employer enrolled in E-Verify.
- A remote employee may choose to come into the employer’s office to personally review their I-9 documents.
- All employers who enroll in E-Verify and are using an I-9 digital software program that interfaces with E-Verify are required to have all users participate in mandatory anti-discrimination training. https://www.e-verify.gov/book/export/html/3802
DOJ Immigrant and Employee Rights (IER)
While employers should always strive to have perfect I-9s, if they have any questions about whether someone is authorized to work (whether a new hire or someone on an automatic extension), they should consult an attorney. The DOJ will keep employers strictly responsible for any inadvertent denial of employment due to a misunderstanding of whether an employee is authorized to work. Along with that comes a heavy Civil Investigation Demand, mandatory training, fines and public shaming.
consult the lawyer
When you encounter any unusual I-9 issues, consult an experienced employment attorney to avoid creating liability, both on integration and terminations. Sheppard Mullin can help with employment issues, immigration issues and any export control and licensing issues.
As this new rule unfolds, we are available to provide additional guidance to employers.