Updates Include a New Form and Long-Awaited Remote Verification Procedures
The Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services recently issued a new version of Form I-9, Employment Eligibility Verification. It also established long-awaited procedures for a remote verification process. Both became effective Aug. 1, 2023.
The Form I-9 appears deceptively simple, but opportunities for errors abound. The new Form I-9 attempts to reduce those opportunities for error. And while the remote verification process is a welcome change, particularly in the post-COVID-19 era of increased remote work, it is limited in scope and required very particular procedures. Employers must ensure they meet these requirements to avoid inadvertent violations.
The New Form I-9
Effective Date: The new Form I-9 (Rev. 08/01/23) became available for use on Aug. 1, 2023. The prior version (Rev. 10/21/19) will remain effective through Oct. 31, 2023, at which time it will become obsolete. Beginning Nov. 1, 2023, employers who fail to use the new Form I-9 (Rev. 08/01/23) to verify new employees (or to reverify current employees where required) may be subject to penalties.
Revisions to the Form I-9: While the basic Form I-9 reporting, data input and retention rules remain unchanged, the new Form I-9 (Rev. 08/01/23) implements several important revisions designed to streamline the employment verification process and reduce the burden on employers and employees. In addition to clarifying the instructions for completion contained on the Form I-9 itself, those revisions include:
- Reducing Sections 1 and 2 to fit on a single-sided sheet, including merging some data fields;
- Moving the “Preparer/Translator Certification” (formerly in Section 1) and the “Reverification and Rehire” section (formerly Section 3) of the Form I-9 to standalone Supplements (A and B) that employers can utilize where applicable;
- Replacing the reference to “alien authorized to work” with “noncitizen authorized to work,” as well as clarifying the difference between “noncitizen national” and “noncitizen authorized to work”;
- Revamping the electronic version of the Form I-9 to make it easier to download and use and to enhance compatibility with tablets and mobile devices;
- Revising the List of Acceptable Documents to specify acceptable receipts and provide guidance regarding automatic extensions of employment authorization documentation; and
- Adding a box to check when an employee’s Form I-9 documentation is examined under a DHS-authorized alternative procedure (e.g., remote verification) rather than via an in-person physical examination (see below).
Additional Updates: The Form I-9 Instructions also were updated and streamlined, reduced from 15 to eight pages, with additional explanations and simplified instructions. Employers are required to make the Form I-9 Instructions available to employees when they are completing the form and should ensure that they are using the most up-to-date version.
Remote Verification Process
Employers—particularly those with large remote workforces—have long lamented the lack of a remote verification process and the cost and administrative burden of the in-person document inspection requirement. As a result of the COVID-19 pandemic, remote verification was temporarily allowed under certain circumstances through July 31, 2023. DHS had solicited public input on alternatives to in-person document inspection back in 2021 and has finally answered the call for a more streamlined process. Employers should be aware, however, that there are currently very specific requirements to take advantage of this option, although DHS is considering expanding the program.
Available Only to E-Verify Employers: The remote verification option is currently available only to employers participating in the E-Verify system and “in good standing” with respect to E-Verify. This is a critically important limitation. Qualified employers must complete online training through E-Verify to participate. Non-E-Verify employers who wish to use this new process will need to enroll in E-Verify.
Process: A qualified employer must first examine clear and legible copies of the worker’s I-9 documentation (front and back if two-sided) within three business days of the worker’s start date. The employer must thereafter have a live video interaction with the worker, who must present the originals of the same documents transmitted to the employer so the employer can ensure that the documents appear to be genuine and that they relate to that worker. The employer must also check the appropriate box on the Form I-9 indicating that this alternative process was used and retain the document copies used for the remote verification process.
Non-Discrimination: Employers may continue to inspect documents physically rather than using the remote verification process. However, if the employer offers the remote verification process to some employees at a worksite, it must offer that process to all employees at that worksite. Employers are, however, permitted to distinguish between fully remote workers and on-site/hybrid workers and utilize the remote verification process only for fully remote workers, provided there is no discriminatory motive in doing so.
COVID-19 Remote Verification Compliance: As noted above, remote verification was temporarily permitted under certain circumstances as a result of the COVID-19 pandemic, but this option expired on July 31, 2023. Employers still were required to inspect documents in person within the requisite time frame, and the deadline for completing this inspection is Aug. 30, 2023. Notably, DHS has outlined circumstances in which employers may, rather than physically inspecting documentation in person for workers hired using the relaxed COVID-19-era verification guidelines, utilize these new remote verification procedures. Specifically, in order to utilize this process, the employer must have: (i) been enrolled in E-Verify when the employee was hired, (ii) created an E-Verify case for that employee, and (iii) performed a remote document inspection for the employee in completing the Form I-9 under the temporary COVID-19 measures in place between March 20, 2020, and July 31, 2023. Employers who do not meet these requirements must still perform an in-person inspection of documentation.
No Retroactive Effect: The new remote verification process applies only to workers hired on or after Aug. 1, 2023; it cannot be applied to previously hired workers, other than with respect to workers whose employment authorization was properly verified pursuant to the relaxed guidelines implemented as a result of the COVID-19 pandemic, subject to the eligibility requirements outlined above.
Please reach out to your Brownstein attorney or one of the authors named below for specific advice related to the Form I-9 or the remote verification process.
This document is intended to provide you with general information regarding the new Form I-9 and updated remote verification procedures. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.