DHS Announces New Form I-9 and E-Verify Remote Verification for Employers
The Department of Homeland Security (“DHS”) announced on July 21, 2023 that it will issue a revised version of Form I-9 on August 1, 2023. DHS also announced that it is increasing the flexibility of remote verification using video for E-Verify employers, both for cleanup of I-9s made during the pandemic and going forward.
Major Changes to Form I-9 Issued August 1
- Employers can use the current Form I-9 (10/21/19) through October 31, 2023.
- Beginning November 1, 2023, all employers will be required to use the new Form I-9.
- Collapse sections 1 and 2 to a single-sided sheet
- Author/Translator Certification Supplement
- Recertification and Rehire Supplement
- Guidance on Additional Acceptable Documents and Automatic Extensions
- E-Verify for Employers includes a box showing special remote verification of documents
E-Verify New Alternate Procedure to Enable Remote Employer Verification that’s all
Effective August 1, 2023, employers enrolled in E-Verify will be allowed to follow a new flexible procedure for remote verification of I-9 supporting documents.
- step 1: Applicant (after offer) or employee copies or photographs supporting I-9 documents (front and back) and emails (or via another form of transmission) to employer.
- Step 2: The employer will inspect the documents to ensure that they reasonably appear to be genuine.
- Step 3: Employers conduct live video interactions (i.e. Zoom, Teams, Google Meet, FaceTime, etc.) work with the applicant or employee to ensure that the documents are reasonably relevant to the applicant or employee; Applicants or employees must again present the same documents previously sent to the employer during the live interaction.
- Step 4: Employers should mark the Alternate Procedures box in Supplement B on the new I-9 form for new employees hired on or after August 1, 2023. Alternatively, if the employee was hired during the pandemic, the employer will complete this task by August 30, 2023, by marking “alternative procedures” in the additional information box on her previous I-9 form.
- Step 5: Employers should keep supporting documentation (paper or digital) and attach it to the I-9. (Previously, only List A documents were copied. Due to the new remote flexibility, E-Verify employers are required to keep copies of all List A, or List B and C documents.)
Pandemic I-9 Cleanup for E-Verify Employers – Due August 30
Employers who have participated in E-Verify and created E-Verify cases for employees whose documents were verified remotely during the COVID-19 pandemic (March 20, 2020 to July 31, 2023) can now choose to meet the physical document verification requirement through August 30, 2023 using new alternative live video procedures starting August 1, 2023.
Employers should list the “alternative procedure” along with the date of the video inspection in the Additional Information box on page 2 of the old version I-9. Employer must not create a new case on her E-Verify.
E-Verify employers hiring remote employees after August 1, 2023 must use the new I-9 form and complete Supplement B, which specifies alternative procedures.
Pandemic I-9 cleanup deadline for non-E-Verify employers is August 30
Employers who have not enrolled in E-Verify during the COVID-19 flexibility period: face to face All employees hired during the pandemic will have a medical examination by August 30, 2023.
Avoiding Discrimination Using E-Verify
Employers should be mindful of the following key issues:
- E-Verify is only used for new hires. The only exception is an employee on a covered federal contract that requires her mandatory E-Verify.
- The I-9 must never be completed until an offer is made and E-Verify must not be used until the I-9 is completed.
- Between March 20, 2020 and July 31, 2023, employers who were not enrolled in E-Verify at the time they first conducted remote inspections of employee documents under COVID-19 flexibility may not use eligible video flexibility for employees hired thereafter, unless the employee was hired after the employer enrolled in E-Verify.
- A remote employee may choose to travel to the employer’s office and inspect the I-9 form in person.
- All employers registered with E-Verify and using a digital I-9 software program that works with E-Verify are required to have all users participate in mandatory non-discrimination training. https://www.e-verify.gov/book/export/html/3802
Department of Justice Immigration and Employee Rights (IER)
Employers should always try to get a perfect I-9, but if you have any doubts about whether someone is allowed to work (whether a new employee or someone on auto-renewal), you should consult an attorney.DOJ Binds Employers be strictly responsible Inadvertent refusal of employment due to misunderstanding whether an employee is authorized to work. With that come cumbersome civil investigation demands, mandatory training, fines and public shaming.
consult a lawyer
If you have unusual problems with your I-9, consult an experienced employment attorney to avoid liability for both hiring and termination. Sheppard Mullin can help with employment issues, immigration issues, export control and licensing issues.
As this new rule rolls out, we are able to provide additional guidance to employers.