What employers need to know about Form I-9 updates
Employers should also begin using the new Form I-9 on or before October 31, 2023.
In May 2023, the Department of Homeland Security put in place an August 30, 2023, deadline for employers to go back and physically inspect documents of all employees whose documents were remotely verified pursuant to DHS’s COVID 19 temporary flexibilities. Physical inspection of an employee’s Form I-9 acceptable documents has always been a requirement in the I-9 process. With COVID restrictions, and subsequently, an ever-growing remote workforce, the physical inspection requirement has become more and more challenging. Employers have started utilizing the authorized agent option which, before now, was a relatively elusive concept.
In the midst of employers’ compliance efforts to meet the August 30th deadline, the United States Citizenship and Immigration Service released a new Form I-9 on August 1, 2023. In conjunction, the Department of Homeland Security also published a notice allowing for alternatives to the Form I-9 physical inspection requirement.
Important rules and eligibility requirements for the alternative procedure
The DHS new alternative procedure, effective August 1, 2023, was much awaited and came as a relief to many employers. Importantly, however, the alternative procedure may only be used by qualified employers, which are those employers who are enrolled in E-Verify and are in good standing (i.e. are in compliance with all the requirements of the program).
The alternative procedure permits qualified employers to remotely inspect documents in lieu of physically inspecting them. The procedure also requires, among other things, that employers make and maintain copies (front and back) of the documents reviewed and conduct a live video interaction with the employee to review (again) the same documents reviewed through electronic submission. As always, employers must ensure that they apply policies and practices in a non-discriminatory manner.
Some employers will be able to use the alternative procedure to comply with the DHS August 30th physical inspection requirement. In order to do so, the employer must have:
1) Been enrolled in E-Verify at the time the employer conducted the remote inspection pursuant to the COVID 19 flexibilities;
2) Created an E-Verify case for the employee; and
3) Conducted the employee’s initial remote inspection between March 20, 2020, and July 31, 2023.
The changes to the Form I-9 itself, while substantial, carry less impact than the new alternative procedure. The Form I-9 has been reduced to one page, has fewer pages of instructions, a more detailed list of acceptable documents and, most notably, a new “alternative procedure” box that employers must check if they are eligible and are, in fact, utilizing the new alternative procedure.
Related: Meeting the compliance challenges of hiring a global workforce
The August 30th deadline is still in place and employers should make sure to complete physical inspection of documents by that date or use the alternative procedure in lieu of the physical inspection if the employer qualifies to do so.
Employers should also begin using the new Form I-9 on or before October 31, 2023. As of November 1, 2023, the 2019 Form I-9 will no longer be valid.
Meredith Dinkins, assistant general counsel and HR consultant, Engage PEO