Federal Government Releases New Form I-9 for U.S. Employers
By: Chris Fontan
On August 1, 2023, the U.S. Citizenship and Immigration Services (“USCIS”) released its newest version of the federal Form I-9. U.S. employers are allowed to continue using the previous version of the Form I-9 through October 31, 2023. However, starting on November 1, 2023, all employers are required to use this new, updated form.
Updates to the Form I-9
The USCIS made a number of material changes to the Form I-9 with this latest update, including:
- Reducing Sections 1 and 2 to a single page; previously, these sections took up two pages.
- Relocating Section 1 (Preparer and/or Translator Certification area) to a separate, standalone supplement for employers to provide to its applicants or employees as needed.
- Revising the Lists of Acceptable Documents page—for use with Section 2—to include:
- Adding some acceptable receipts, and
- Providing guidance and links to information on automatic extensions of employment authorization documentation
- Moving Section 3 (Reverification and Rehire area) to a standalone supplement for employers to utilize as needed.
- Including a checkbox that allows employers to indicate that they have examined an applicant’s/employee’s Form I-9 documentation remotely pursuant to newly authorized virtual procedures (as opposed to traditional physical examination).
The updated Form I-9 virtually cuts its instruction section in half, reducing it from fifteen pages down to eight pages. Additionally, the form has also been re-designed to be fillable on mobile devices, such as tablets and other smart phones.
The biggest change with the new Form I-9 is the ability for employers to indicate they “virtually” examined an applicant’s/employee’s identity and employment authorization documents—as opposed to the traditional method of reviewing these documents in person. To participate in the remote examination option, employers must:
- Be enrolled in E-Verify and be in good standing,
- Examine and retain “clear and legible” copies of all documents,
- Conduct a live video interaction with the employee during the verification process, and
- Create an E-Verify case if the employee is a new hire.
Employers who were participating in E-Verify and created cases for employees whose documents were examined virtually between March 20, 2020, and July 31, 2023, may choose to use the new alternative procedure to satisfy the physical document examination requirement by August 30, 2023. Note however, that employers who were not enrolled in E-Verify during the COVID-19 flexibilities time frame must complete an in-person physical examination by August 30, 2023.
While the new Form I-9 is shorter and more streamlined, employers and job applicants are advised to use caution. While the Form I-9 began as a one page document, it has existed as a multi-page form for over a decade. As a result, experts fear that employees or employers will accidentally supply information for each other’s sections, which is prohibited under federal law. In addition, there is an increased likelihood that employees and employers will make more mistakes in completing the document, which could lead to serious consequences since individuals execute the Form I-9 “under penalty of perjury.”
In addition, questions also remain concerning the remote verification option. For example, how and where should employers note whether employees that went through remote verification over the prior three years have brought in new documents? Do employers need to document and retain proof of the video call required for virtual review on file? Employers are advised to remain alert for further guidance on these and additional issues from USCIS in the coming months.
Brunini’s Labor & Employment specialists are monitoring these events and will update you accordingly. In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.