The U.S. Department of Homeland Security (DHS) published a new version of the Form I-9 on Tuesday, July 25, via the Federal Register. Employers may begin downloading and using the new form on August 1, 2023. The current form version (10/21/2019) may be used through October 31, 2023, and the new version must be used beginning November 1, 2023.

What’s New?

For those familiar with the most recent versions of Form I-9, you will find the new version more intuitive, streamlined and, hopefully, user-friendly. 

1. Employee Section 1 and Employer Section 2 are reduced to one page.
2. The “Preparer and/or Translator” portion (formerly part of Section 1) and the “Reverification and Rehire” portion (formerly Section 3) are now individual supplemental sections (A and B).
3. Ensured that the Form I-9 could be filled out on tablets and mobile devices.
4. New notice at the top of the Form I-9 that explains how to avoid discrimination in the Form I-9 process.
5. Individual will no longer need to input “N/A” in many fields.
6. The Lists of Acceptable Documents is updated to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation.
7. And there is now an added check box that eligible employers must check if the employee’s Form I-9 documentation was examined under a DHS-authorized Alternative Procedure (discussed below) as opposed to via physical (in-person) examination.

The New Optional Alternative Procedure for Review of I-9 Documentation

Some employers may avoid in-person document inspection by reviewing documentation based on a new “Alternative Procedure” provided that the employer can meet specific requirements.

To be eligible for the “Alternative Procedure” for virtual verification of I-9 documentation, an employer must be a “Qualified Employer,” meaning the employer must be enrolled in, and in good standing with, E-Verify. Additionally, the employer must be enrolled at every hiring site in the United States that allows virtual verification under the alternative procedure. (Note: the employer is not required to be enrolled in E-Verify at every hiring site; however, only hiring sites enrolled in E-Verify are eligible.)

The employer must offer the Alternative Procedure consistently to all new hires (and for all reverifications) at a hiring site or to none. The only permissible exception is that the employer may choose to use the Alternative Procedure only for remote employees and not for employees that work onsite or in a hybrid capacity if the employer does not adopt such a practice for a discriminatory purpose.

The employer’s E-Verify users must have undergone an E-Verify tutorial that includes fraud awareness and anti-discrimination training. E-Verify will be releasing a new tutorial that will include fraud awareness and anti-discrimination components. The new components of the training are only required for newly enrolling employers. Existing E-Verify employers may also take the revised tutorial but are not required to do so to use the alternative procedure.

Other requirements for qualified employers are:

1. The employer (or an authorized representative) must obtain from the employee and retain clear copies of the front and back of the documentation presented by the employee for Form I-9 purposes to verify identity and work authorization.
2. The employer (or an authorized representative) must examine the copies of the supporting documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine.
3. After the employee transmits a clear copy of the documentation to the employer (or an authorized representative), the employer (or an authorized representative) must conduct a live video interaction with the employee in which the employee displays the same documentation that was transmitted to the employer (or an authorized representative).
4. The employer (or an authorized representative) must indicate on the Form I-9 that an Alternative Procedure was used to examine documentation to complete Section 2 or for reverification. Users of the new Form 1-9 (to be released August 1, 2023) will need to complete the box on the form to indicate that an Alternative Procedure was used. Employers not using this version of the Form I-9 (the 10/21/2019 version may be used through October 31, 2023), must note “Alternative Procedure” with the date of the live video interaction in the “Additional Information” field in Section 2.

Employers meeting all the above requirements may conduct a virtual inspection of the documents and will no longer be required to conduct in-person meetings with new hires to complete the Form I-9.

How Does the New Rule Impact I-9s Prepared Using Virtual Review During COVID?

The flexibility offered during the COVID-era allowing virtual document inspection for employees working remotely due to COVID-19 will end July 31, 2023. DHS previously announced in May 2023 that employers who complied with temporary I-9 flexibilities due to the COVID-19 pandemic have a deadline of August 30, 2023, to conduct in-person review of Form I-9 documentation.

Employers that are required to conduct a physical inspection of the documents by August 30, 2023, are eligible to conduct the I-9 updates by the deadline using the Alternative Procedure if they meet the following criteria:

1. The employer was enrolled in E-Verify at the time that they completed virtual/remote examination of the employee’s I-9 documentation for Section 2 or reverification;
2. The employer created an E-Verify case for the new hire (not applicable for reverification); and
3. The initial remote/virtual document examination was performed between March 20, 2020, and July 23, 2023.

If the employer meets the above criteria, the Alternative Procedure can be used to update the Forms I-9 in lieu of in-person document examination.  Unfortunately, this means that the employer will need to conduct another virtual inspection of the I-9 documentation and annotate the Forms I-9 to acknowledge use of the Alternative Procedure. This annotation should be placed in the “Additional Information” box on page 2, Section 2 of the Form I-9. The employer should not create a new case in E-Verify. The employer utilizing this Alternative Procedure to complete the “physical inspection” by August 30 must perform the following actions:

1. Obtain and retain legible copies of the front and back of the documentation presented by the employee for Form I-9 purposes. If the employer retained copies of the documents from the initial remote/virtual inspection, it does not need to obtain new copies of the documents unless it did not retain copies of the front and back of the document(s) and/or the employee presents new documents for this virtual examination. Employees are permitted to provide other documentation satisfying Section 2 of the I-9.
2. After the employee transmits a legible copy(ies) of the documentation to the employer (or the authorized representative), a live video interaction with the employee in which the employee displays the documentation that they previously transmitted or provide new documentation must occur. New documentation would necessitate the completion of a new Section 2.
3. The employer must notate on the Form I-9 that the required update to the I-9 was conducted using the Alternative Procedure. Users of the new 1-9 form (to be released August 1, 2023) will need to complete the box on the Form I-9 to indicate that an Alternative Procedure was used. Employers not using the version of the Form I-9 (the 10/21/2019 version may be used through October 31, 2023), must note “Alternative Procedure” with the date of the live video interaction in the “Additional Information” field in Section 2.

If the employer was NOT enrolled in E-Verify at the time that the remote/virtual review of the Form I-9 documentation was conducted, the employer is required to physically examine the employee’s documentation to meet the August 30 deadline to conduct the in-person inspection. Enrolling in E-Verify now will not permit such employers to utilize this Alternative Procedure to meet the August 30 deadline for physical (in-person) inspection.

If you have questions about the new version of the Form I-9, please reach out to Ken Robinson or the Workplace Solutions lawyer you regularly work with. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.