Changes to Form I-9 and the Virtual Inspection Process: Top 5 Things to Know

As we previously reported, the Department of Homeland Security is making changes to Form I-9 and has created a permanent virtual I-9 document inspection procedure (“Alternative Procedure”). The most important takeaways from the DHS announcement are listed below.

1. A New Form I-9

DHS has announced that beginning August 1, 2023 employers may use the new version of the Form I-9. Use of the new Form I-9 will not be mandatory until November 1, 2023. The new Form I-9 is back to one page!

2. A Permanent Virtual I-9 Document Inspection Process (“Alternative Procedure”)

DHS, in conjunction with a new regulation, has created a permanent virtual I-9 document inspection process (Alternative Procedure) that will be effective for employees hired on or after August 1, 2023.

3. The Alternative Procedure is Only Available to Qualified Employers

The new virtual I-9 document inspection process is only available to Qualified Employers which, at a minimum, is an employer that is enrolled and in good standing in the E-Verify program.

4. Alternative Procedure May Be Used to Meet COVID-19 Flexibilities Deadline

Qualified Employers may also utilize the Alternative Procedure in lieu of conducting a physical review of I-9 documents in order to meet the COVID-19 Flexibilities physical inspection requirement deadline of August 30. The Qualified Employer must have been enrolled in E-Verify when the initial Form I-9 was completed.

5. DHS Not Likely to Prioritize Enforcing Violations for Failure to Complete Physical Document Examination by August 30

DHS has stated that “If an employer is otherwise compliant with the law and regulation – and had followed the COVID-19 flexibility guidance – U.S. Immigration and Customs Enforcement (ICE) will generally not focus its limited enforcement resources on Form I-9 verification violations for failing to complete physical document examination by August 30, 2023, particularly where the employer can show that it has taken timely steps to complete physical document examination within a reasonable period of time.”