On August 1, 2023, USCIS released a simplified and updated Form I-9. The revised form is shorter and designed to be fillable on mobile devices. Employers should begin using the new form as soon as possible, but must begin using it no later than November 1, 2023, to avoid potential penalties and legal violations.
In addition to a streamlined Form I-9, employers must also ensure that they are in compliance with document review requirements, including for remote employees who were hired during the COVID-19 pandemic. During the COVID-19 pandemic, “temporary flexibilities” were permitted that allowed employers to initially review employees’ Form I-9 documentation remotely (e.g., through a video link, fax, or email) and then obtain copies of the documents. Effective on August 1, 2023, the “temporary flexibilities” will expire, and many employers are needing to physically inspect employees’ documents previously reviewed under these “temporary flexibilities.”
Fortunately, employers currently enrolled in good standing in E-Verify that (1) were enrolled in E-Verify at the time they performed a remote examination of an employee’s documentation using the COVID–19 flexibilities, (2) created an E-Verify case for that employee (except for reverification), and (3) performed the remote inspection between March 20, 2020 and July 31, 2023, can use the alternative procedure described below to satisfy the required physical examination of the employee’s documents for that Form I–9.
Employers who are enrolled in the E-Verify System will be able to take advantage of the new optional process to use video verification of documents for newly hired employees. Under this system, an employer may choose to offer the alternative to all employees or only to remote hires. (If only a subset of employees is offered the alternative review procedure, the employer must be cautious to ensure eligibility is not based on a protected characteristic.)
To use the remote alternative, employers must first examine copies of the employee’s proposed I-9 documents. Employers will then conduct a live video interaction with the employee presenting those same documents to assess whether the documentation reasonably appears to be genuine and related to the employee. After the video review, the employer will fill out the Form I-9 marking either the newly created box in Section 2, noting the alternative procedure was used or using Supplement B for reverifications. Finally, employers must retain clear and legible copies of all documents presented by the employee through the alternative procedure.
Note: The foregoing is an excerpt of an article by labor and employment law attorney Pam Bourne published in NIRMA’s Sept/Oct. Interchange magazine.
The online version of NIRMA’s Guide to Creating a Personnel System is updated to include the new I-9 form. Find it on NIRMA’s website by first logging in, accessing the Interact Portal menu, and selecting Manuals/Policies.
The new I-9 form and accompanying instructions, as well as a Fact Sheet summarizing the changes made to the form, are also available for download on the USCIS website.
