New Form I-9 Is Finally Here

On schedule and as promised, the U.S. Citizenship and Immigration Service has published a new Form I-9. The new form:

• Reduces Sections 1 and 2 to a single-sided sheet.
• Is designed to be a fillable form on tablets and mobile devices.
• Moves the Section 1 Preparer and/or Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary.
• Moves the Section 3 Reverification and Rehires area to a standalone supplement that employers can print if or when a rehire occurs or reverification is required.
• Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation.
• Reduces the form instructions from 15 pages to 8 pages.
• Includes a checkbox, allowing employers to indicate they examined Form I-9 documentation remotely under a Department of Homeland Security (DHS)-authorized alternative procedure rather than via physical examination.

Employers can use the previous edition Form I-9 (edition date 10/21/19) through Oct. 31, 2023. Starting Nov. 1, 2023, all employers must use the new Form I-9.

Per the USCIS, “Employers who participate in E-Verify and are in good standing will have the option to conduct verification electronically and with a live video call interaction … Employers who do not participate in E-Verify have until August 30, 2023, as previously announced, to perform all required physical examination of identity and employment authorization documents for those individuals hired on or after March 20, 2020, and who have received only a virtual or remote examination under the COVID-19 temporary flexibilities.”

“At this time, the alternative procedure is available only to qualified employers, meaning those employers who are participants in good standing, in E-Verify. A participant in good standing in E-Verify is an employer that has enrolled in E-Verify with respect to all hiring sites in the United States that use the alternative procedure; is in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and continues to be a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure. If a qualified 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. However, 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 who use an alternative procedure with an employee must retain a clear and legible copy of all documents presented by the employee seeking to establish identity and employment eligibility for the Form I–9.”

Qualified employers who were already participating in E-Verify and created any cases between March 20, 2020, to July 31, 2023, for employees whose documents were examined in accordance with the COVID-19 national emergency flexibilities may choose to use the new alternative procedure beginning August 1, 2023, to satisfy the physical document examination requirement due by August 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by August 30, 2023.

“Qualified employers that (1) were enrolled in E-Verify at the time they performed a remote examination of an employee's Form I–9 documentation for Section 2 or reverification while 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 to satisfy the required physical examination of the employee’s documents for that Form I–9. Such employers should not create a new case in E-Verify.”

You can find the new form and instructions here. The Final Rule, which contains a helpful Q&A section on the new alternative procedure, can be found here. Employers are encouraged to read the new form, instructions, and rule to ensure they can comply by the August 30, 2023, and November 1, 2023, deadlines.