Update 11/8/23: Note for Sequoia One PEO Clients: The updated I-9 forms have been incorporated to the PrismHR onboarding workflow.
Recently, the US Citizenship and Immigration Services (USCIS) announced significant changes to the Federal I-9 form and verification process:
- Beginning August 1, 2023, employers that participate in E-Verify and are in “good standing” have the option of examining I-9 documentation via a live call (“alternative procedure”) instead of in-person (as is currently required) for employees hired August 1, 2023, and beyond.
- In addition, employers who were enrolled in E-Verify at the time they remotely verified I-9 documentation (pursuant to the temporary COVID-19 flexibilities) can also use the new alternative procedure beginning August 1st to comply with the upcoming August 30, 2023, physical verification deadline.
- Beginning November 1, 2023, employers must use an updated I-9 form. Employers can continue use the existing form until October 31, 2023.
These changes are discussed in more detail below.
Alternative Procedure for I-9 Document Verification
Currently, employers (or an authorized representative) are required to physically examine I-9 documentation in the employee’s presence and within 3 business days of the employee’s first day of employment.
Beginning August 1, 2023, employers that participate in E-Verify and are in “good standing” will have the option of verifying I-9 documentation via a live video call interaction. The use of this alternative procedure is completely optional and neither employers nor employees are required to use it (employers can continue to use in-person verification).
Employers Eligible to Use Alternative Procedure
Employers who are participants “in good standing” in E-Verify can use the alternative procedure.
An employer is in good standing if they:
- Are enrolled in E-Verify with respect to all hiring sites in the U.S. that use the alternative procedure;
- Comply with all requirements of the E-Verify program including but not limited to, verifying the employment eligibility of new hire employees in the U.S.; and
- Continue to be enrolled and a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure.
Application of Alternative Procedure
When: Employers can start using the alternative procedure on August 1, 2023 (the use of the alternative procedure does not expire). The alternative procedure can only be used for employees hired on or after August 1, 2023, except for certain cases related to the COVID-19 flexibilities, as outlined below.
Who: Employers who choose to use the alternative procedure must do so consistently for all employees at a worksite. However, an employer may choose to offer the alternative procedure for only remote hires and continue to use physical examination for employees who work onsite or in a hybrid capacity, so long as the employer does not adopt the practice for a discriminatory purpose or based on a protected characteristic.
If an employee is unable or unwilling to submit documentation for the alternative procedure, employers must allow employees to complete the I-9 via a physical examination.
Alternative Procedure Requirements
Employers who decide to use the alternative procedure must still do so within 3 business days of an employee’s first day of employment.
The alternative procedure and the related employer/employee responsibilities are outlined below:
- Employee provides copies of acceptable I-9 documentation to the employer.
- Employer examines copies of the I-9 documentation provided to ensure it reasonably appears to be genuine.
- Employer must conduct a live video interaction whereby:
- The employee presents the same documentation; and
- The employer ensures the documentation reasonably appears to be genuine and related to the individual.
- Employer indicates on the employee’s Form I-9 that the alternative procedure was used to examine the documentation.
- Current Form I-9 (effective until October 1, 2023): The employer would write “alternative procedure” in the Additional Information field in Section 2.
- New Form I-9 (effective August 1, 2023): Employer must indicate their use of the alternative procedure by completing the corresponding box in Section 2 or in the section corresponding to reverification (as applicable).
- Employer must retain clear and legible copies of the documentation and, in the event of a Form I-9 audit or investigation, make available the documentation presented by employees.
- This would be a new documentation retention requirement for employers who use the alternative procedure. Employers who physically examine I-9 documentation may choose to make and retain copies or scans of the documentation presented by employees.
Alternative Procedure and Sunset of COVID-19 Flexibilities
As a reminder, employers have until August 30, 2023, to complete physical document inspections for employees whose documents, to date, have only been inspected virtually consistent with the temporary COVID-19 flexibilities (which sunset on July 31, 2023).
Certain employers that were enrolled in E-Verify during the temporary flexibilities can use the alternative procedure to satisfy the physical verification requirement. Employers can use the alternative procedure if they:
- Were enrolled in E-Verify at the time they performed a remote examination of the employee’s I-9 documentation for Section 2 or reverification while using the temporary flexibilities;
- Created an E-Verify case for that employee (except for re-verification); and
- Performed the remote inspection between March 20, 2020, and July 31, 2023.
If an employer uses the alternative method for this purpose, they should:
- Not create a new case in E-Verify;
- Follow the steps of the alternative procedure (outlined above); and
- Add “alternative procedure” with the date of the examination (i.e., the date the employer performed a live video interaction) to the Section 2 Additional Information field on the Form I-9, or Section 3, as appropriate.
If an employer was not enrolled in E-Verify at the time they took advantage of the temporary flexibilities, then they cannot use the alternative procedure, and are required to physically examine the I-9 documentation in the employee’s presence to meet the August 30, 2023 deadline.
Notably, the recent USCIS statement announcing the alternative procedure also stated that U.S. Immigration and Customs Enforcement (ICE) would generally not focus its limited resources on Form I-9 verification violations for failing to complete physical documentation examination by August 30th where an employer is otherwise compliant with law and regulation, followed the COVID-19 flexibility guidance, and has taken timely steps to complete the physical examination within a reasonable period of time.
For more on the previously issued temporary flexibilities, see our blog.
Updated I-9 Form
Additionally, the USCIS announced an update to the Federal Form I-9. Employers can begin using the updated I-9 on August 1, 2023; however, employers have the option of using the existing I-9 form through October 31, 2023. All employers must use the new I-9 form beginning November 1, 2023.
The revised Form I-9 does the following:
- 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/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;
- Moves Section 3, Reverification and Rehire, to a standalone supplement that employers can print if or when 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; and
- Includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination.
Sequoia One PEO Clients Only: PrismHR is working to update the onboarding workflow to accommodate the new I-9 changes.
While there is no required action, employers may want to take the following steps:
- If your company participated in E-Verify when conducting remote inspections pursuant to the COVID-19 flexibilities, determine if you want to use the alternative procedure to comply with the August 30, 2023, physical verification deadline.
- Determine whether you want to use the alternative procedure moving forward, and if so, determine:
- Which worksites/employees will use the alternative procedure;
- Your process for requesting copies of I-9 documentation, conducting live videos, and notating the alternative procedure; and
- How you will keep and retain copies of I-9 documentation.
- Determine when you will start using the new I-9 forms.
- DHS Provides Employers Certainty and a New Flexible Option for Employment Eligibility Verification
- USCIS to Publish Revised Form I-9
- Optional Alternative to the Physical Examination Associated with Employment Eligibility Verification (Form I-9)
- Sequoia Foreword: Employers Have Until August 30, 2023 to Comply with Form I-9 Physical Verification Requirements
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