Employment Law Bulletin | July 27, 2023

New Form I-9 Available on August 1, 2023

On August 1, 2023, the Department of Homeland Security (“DHS”) will publish a revised version of Form I-9 Employment Eligibility Verification (“Form I-9”).  The Form I-9 is used to verify the identity and employment authorization of individuals hired for employment in the United States.  All U.S. employers must properly complete the Form I-9 for each individual they hire.

The new August Form I-9 will replace the Form I-9 published on October 21, 2019, which is still in use despite an October 31, 2022 expiration date.  Employers can use the October 21, 2019 Form I-9 through October 31, 2023.  Starting November 1, 2023, all employers must use the new Form I-9.

Check the DHS website on August 1 for the new Form I-9.

DHS Announces Remote Option to Review Employment Eligibility Verification Documents for Completing the Form I–9

On July 25, 2023, the DHS announced the authorization of an optional alternative procedure to the in-person physical examination of documentation presented by new hires for the purpose of completing the Form I–9.  A copy of the new rule can be found here.  Employers may begin using the alternative procedure on August 1, 2023.

“Qualified Employers” Who Can Use the Remote Alternative Procedure

The remote alternative procedure is available only to employers that have enrolled in E-Verify with respect to all hiring sites in the United States, and are in compliance with all requirements of the E-Verify program.

Use of the alternative procedure is entirely optional.  Nothing in the alternative procedure prevents qualified employers from physically examining documents for the Form I–9.  However, once enrolled in E-Verify, employers are required to create an E-Verify case for all newly hired employees, whether or not the alternative procedure is used, at each hiring site that is enrolled in E-Verify.

Remote Alternative Procedure Requirements

Within three business days of an employee’s first day of employment, a qualified employer (or an authorized representative acting on such an employer’s behalf, such as a third-party vendor) who chooses to use the alternative procedure must complete all of the following steps:

  • Step 1:  Examine copies (front and back, if the document is two-sided) of the identity and employment authorization Form I–9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
  • Step 2:  Conduct a live video interaction with the individual presenting the documents to ensure that the documentation reasonably appears to be genuine and related to the individual.  The employee must first transmit a copy of the documents to the employer (per Step 1 above) and then present the same documents during the live video interaction;
  • Step 3:  Indicate on the Form I–9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable; and
  • Step 4:  Retain a clear and legible copy of the documentation (front and back if the documentation is two-sided).

In the event of a Form I–9 audit, the employer must make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.

If the employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site.  A qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin.

Qualified employers must allow employees who are unable or unwilling to submit documentation using the alternative procedure to submit documentation for physical examination.  Nothing in the alternative procedure prevents an employer from physically examining documents when requested to do so by an employee.

Training Requirement

Employers who enroll in E-Verify and any users who manage and create E-Verify cases must complete an E-Verify tutorial that includes fraud awareness and anti-discrimination training.  The tutorial is free and accessible as part of the E-Verify enrollment process to any users who manage and create E-Verify cases.

For specific questions about the Form I-9 process, please reach out to an SMT employment law attorney.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

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