Starting November 1, 2023, employers must use a new version of the Form I‑9 to verify the employment eligibility of their employees.
The new form, with an edition date of 08/01/23, is reduced to one page from two pages. The Lists of Acceptable Documents page now includes an Acceptable Receipts section to guide employers in situations where employees present a receipt for the replacement of another acceptable document. Employers participating in E-Verify who opt to follow the new "Alternative Procedure" will now check a box on the form to indicate they examined the employee's identity and/or employment authorization documents electronically. The new form has also moved the fields for reverification and rehire from Section 3 to a new Supplement B page.
Changes to Form I‑9
U.S. Citizenship and Immigration Services (USCIS) revised Form I‑9 to incorporate these key changes:
|Current Form I‑9||Previous Form I‑9|
|Sections 1 and 2 reduced to one page||Sections 1 and 2 on two separate pages|
|Lists of Acceptable Documents page now includes information about acceptable receipts||Information about acceptable receipts is in the Form I 9 Instructions|
|Designed to be a fillable form on tablets and mobile devices||Not easily fillable|
|"Preparer and/or Translator Certification" fields appear on a separate Supplement A on page 3 to use only as needed||"Preparer and/or Translator Certification" fields appear in Section 1|
|Checkbox in Section 2 (under "Additional Information") for eligible employers to indicate they examined Form I‑9 documents remotely||No clear way for employers to indicate they used optional alternatives, when available, to examine Form I‑9 documentation|
|"Reverification and Rehire" section is now a separate Supplement B on page 4 to be used as needed||Section 3, "Reverification and Rehire" is a part of main Form I‑9|
|Instructions are 8 pages: view here||Instructions are 15 pages|
No Changes to Most Underlying Employment Eligibility Verification Policies
Pre-existing employment eligibility verification rules remain intact. The employee must complete Section 1 by their first day of work for pay. A representative of the employer must review documents to establish the identity and employment eligibility of the employee and complete Section 2 within three business days after the date of hire, defined as work for wages or remuneration. For example, if an employee begins work on a Monday, Section 1 must be completed by the end of the day on Monday, and Section 2 must be completed by the end of the day on Thursday. Existing employees whose work authorization or work authorization documents expire must present evidence of continuing employment authorization for reverification by the relevant date of expiration. Such reverification must be recorded by a representative of the employer in Supplement B on the new Form I‑9, as Section 3 has been eliminated.
Employers also must remember not to discriminate against or tolerate discrimination against any employee in the Form I‑9 completion process. They must apply uniform processes for all employees, allowing employees to select the acceptable documents they will present for Form I‑9 completion.
Remote Verification Available for E-Verify Employers
Effective July 21, 2023, employers enrolled in E-Verify have had the option to remotely examine employees' identity and employment authorization documents. The process is spelled out in the Handbook for Employers (M-274), Section 4.5 Remote Document Examination (Optional Alternative Procedure to Physical Document Examination). To complete the Alternative Procedure, employers must: (a) receive and examine a copy (front and back, if the document is two-sided) of each document to ensure it reasonably appears to be genuine and relates to the employee; (b) conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and relates to the individual; and (c) retain a copy of the documents presented. After following these steps, employers must check the box labeled "Check here if you used an alternative procedure authorized by DHS to examine documents" in Section 2 (at hire) or Supplement B (at reverification).
Remote Verification for All Employers, Including Those Not Enrolled in E-Verify
The Form I‑9 rules have long granted permission for employers to designate an authorized representative who will review employee Form I‑9 documents and complete the form on behalf of the employer. The Form I‑9 Instructions confirm that an authorized representative can be "[a]ny person an employer designates to complete and sign Form I‑9 on the employer's behalf." This includes the employee's friend, family member, or household member. The authorized representative must review the employee's original documents, record information about the documents on the Form I‑9, and sign and date the form. This option alleviates the need for in-person review by an employee of the employer. DHS does not require the authorized representative to have specific agreements or other documentation to fulfill this role.
However, since employers remain liable for any completion and compliance errors made in the Form I‑9 completion process whether those errors are made by an authorized representative or employer representative, the employer must take steps to ensure the authorized representative has clear instructions and takes the responsibility seriously.
What's Lacking on the New I‑9?
Employees may select from a wide range of documents at hire and reverification. On the Lists of Acceptable Documents page, documents are grouped into List A documents (establishing employment eligibility and identity), List B documents (establishing identity), and List C documents (establishing employment eligibility). While the new Form I‑9 makes strides in clarifying details about the acceptable documents, some confusion may remain, particularly in areas where immigration rules commonly change (e.g., the automatic extension of certain employment authorization documents). For these and other challenging areas, employers can find helpful employment eligibility verification updates and resources at I‑9 Central, the M-775 E-Verify User Manual, and the M-274 Handbook for Employers.
DisclaimerThis advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.