USCIS Introduces New Form I-9 for Employment Eligibility Verification

What is Form I-9, Employment Eligibility Verification?

Employers must verify the identity and employment authorization of each individual they hire in the United States. They must do the verification on Form I-9, Employment Eligibility Verification. This requirements apply to certain agricultural recruiters and referrers for a fee as well.

What are the Requirements for Form I-9 Physical Examination?

Employers must satisfy the following requirements in verifying employees’ employment eligibility:

• Separate from the Form I–9 flexibilities that were announced during the COVID–19 national emergency, within three business days after the first day of employment, employers must physically examine the documentation presented by new employees from the Lists of Acceptable Documents (“Form I–9 documents”), or an acceptable receipt, to ensure that the documentation presented reasonably appears to be genuine and to relate to the individual who presents it.

• Employers must then complete Section 2, “Employer Review and Verification,” of the Form I–9. Additionally, if reverification is required, the employee or referred individual must present a document that shows continued employment authorization or a new grant of employment authorization.

• If the employer rehires an individual for whom it previously completed the Form I–9 and complied with the verification requirements, the employer may inspect the original Form I–9.

• If the rehired employee’s employment authorization, as noted on the original Form I–9,  expires at the time of the rehire, the employer must conduct reverification.

• Employers cannot discriminate against employees based on citizenship, immigration status, or national origin during the Form I–9 process.

• Employers that use E-Verify must retain copies of documentation presented by employees for List A of the Form I–9.[2]

• If employers retain copies of an employee’s Form I–9 documents for reasons unrelated to E-Verify requirements, they must retain the documents for all employees. This applies regardless of actual or perceived national origin, citizenship, or immigration status. Otherwise, the employers may risk violating anti-discrimination laws.

What Changes Has USCIS Made to the Form I-9?

In July 2023, USCIS announced a new version of Form I-9. The new version contains the following significant changes to the form and its instructions:

Updates to the Form I-9

• Reduced Sections 1 and 2 to a single-sided sheet.
• Moved the Section 1 Preparer/ Translator Certification area to a separate, standalone supplement (Supplement A).
• Moved the Section 3 Reverification and Rehire area to a separate, standalone supplement (Supplement B).
• Removed use of ‘‘alien authorized to work’’ in Section 1. Replaced it with ‘‘noncitizen authorized to work.’’ Clarified the difference between ‘‘noncitizen national’’ and ‘‘noncitizen authorized to work.’’
• Ensured the form can be filled out on tablets and mobile devices.
• Removed certain features to ensure the form can be downloaded easily.
• Updated the notice at the top of the Form I–9 that explains how to avoid discrimination in the Form I–9 process.
• Revised the Lists of Acceptable Documents page to include some acceptable receipts. The page also includes guidance and links to information on automatic extensions of employment authorization documentation.
• Added a box that eligible employers must check if they examined employee’s Form I–9 documentation under a DHS-authorized alternative procedure rather than via physical examination.

Updates to the Form I-9 Instructions

• Reduced length of instructions from 15 pages to 8 pages.
• Added definitions of key actors in the Form I–9 process.
• Streamlined the steps each actor takes to complete their section of the form.
• Added instructions for use of the new checkbox for employers who choose to examine Form I–9 documentation under an alternative procedure.
• Removed the abbreviations charts and relocated them to the M–274, Handbook for Employers: Guidance for Completing Form I–9.

What is the DHS-Authorized Alternative Procedure Added to the New Version of Form I-9?

In principle, employers or their authorized representatives must physically examine each original document from the employee. This is to determine that the documentation reasonably appears to be genuine and to relate to the person presenting it.

However, beginning Aug. 1, 2023, certain employers may use an alternative procedure that does not require the physical examination of acceptable documents. This procedure instead includes additional requirements to offer at least an equivalent level of security.

Which Employers are Qualified to Use the Alternative Procedure?

Currently, the alternative procedure is available only to qualified employers. Qualified employers mean those employers who are participants in good standing in E-Verify,[3] which:

• Are employers that have enrolled in E-Verify with respect to all hiring sites in the United States that use the alternative procedure;

• Comply with all requirements of the E-Verify program, including verifying the employment eligibility of newly hired employees in the United States; and

• Continue to be a participant in good standing in E-Verify at any time during which the employers use the alternative procedure.

How Do Employers Conduct the Alternative Procedure?

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:

• First examine copies (front and back) of Form I–9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;

• Then conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual;

• Indicate on the Form I–9, by completing the corresponding box, that they used an alternative procedure to examine documentation to complete Section 2 or for reverification, as applicable; 

• Retain, consistent with applicable regulations a clear and legible copy of the documentation (front and back); and

• Lastly, in the event of a Form I–9 audit or investigation by a relevant federal government official, 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.

Can Qualified Employers Use the Alternative Procedure to Satisfy the Requirement to Physically Examine the Form I–9 Documentation that had been examined remotely under the COVID–19 flexibilities? 

Qualified employers may use the alternative procedure to satisfy the requirement to physically examine the Form I-9 documentation that they had examined remotely under the Covid-19 flexibilities if they:

• 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;

• Created an E-Verify case for that employee (except for reverification); and

• Performed the remote inspection between March 20, 2020, and July 31, 2023.

On the other hand, employers who were not enrolled in E-Verify at the time they initially performed a remote examination of an employee’s documents (i.e., within three business days of the employee’s first day of employment) under the COVID–19 flexibilities between March 20, 2020, and July 31, 2023, must physically examine the employee’s Form I–9 documents in the employee’s physical presence. As previously announced, such employers must have completed the physical examination no later than August 30, 2023.

May Qualified Employers Offer the Alternative Procedure to Only Some Employees?

Qualified employers do not need to use the alternative procedure. Still, if they choose to offer the alternative procedure to some employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site.

However, qualified employers may choose to offer the alternative procedure for remote hires only. Such employers may continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity. Still, the employers may not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic.

What If the Employee Does Not Want the Alternative Procedure?

Some employee might not prefer the alternative procedure to the physical verification. Occasionally, they are unable or unwilling to submit documentation using the alternative procedure. In that case, qualified employers must allow such employees to submit documentation for physical examination.

What is the Document Retention Requirement Under the Alternative Procedure?

In addition to the gerenral document retention requirements, employers who choose to use the alternative procedure must retain a clear and legible copy of all documents presented by the employees for the Form I-9 process.

When Will the New Version of Form I-9 Become Effective?

Beginnig Aug. 1, 2023, employers should begin using the new version of Form I-9 (version date of “Rev. 08/01/23”). Still, employers may continue using the prior version of Form I-9 (“Rev. 10/21/19”) through Oct. 31, 2023. Beginning Nov. 1, 2023, employers who fail to use the new version may be subject to all applicable penalties under the Immigration and Nationality Act.

Do Employers Need to Complete the New Version of Form I-9 for All the Current Employees?

Employers do not need to complete the new version of Form I-9 (“Rev. 08/01/23”) for current employees who already have a properly completed Form I-9 on file. However, if reverification applies after October 31, 2023, employers must complete the new version of Form I-9.

How Long Do Employers Need to Retain Form I-9?

Employers must maintain Form I–9 for during the individual’s employment and for the required retention period after the employment’s termination. The required retention period is either 3 years after the date of hire or 1 year after the date employment ended, whichever is later.

In addition, employers must make their employees’ Form I–9 available for inspection upon relevant government agencies’ request. Such agencies are the Department of Homeland Security, the Immigrant and Employee Rights Section in the Department of Justice’s Civil Rights Division, and the Department of Labor.

Lastly, employers’ failure to ensure proper completion and retention of Forms I–9 may subject them to civil money penalties, and, in some cases, criminal penalties.

USCIS’ announcement shows a chart to participate in the alternative procedure. For more details of the alternative procedure, visit here. The new version of Form I-9 and its instructions are available here.

Disclaimer

[1] i.e., the first day of work in exchange for wages or other remuneration.

[2] Currently, employers who physically examine the documentation may choose to make and retain copies or scans of the documentation .

[3] E-Verify is a web-based system through which employers electronically confirm their employees’ employment eligibility. The Social Security Administration and U.S. Citizenship and Immigration Services (USCIS) administer E-Verify.