Form I-9 Update: New Form and Virtual Document Verification Coming Soon

Update 7/28/2023: Read our attorneys’ summary of key points about the new Form I-9 and Alternative Procedure here.

The Department of Homeland Security (DHS) announced that a new version of the Form I-9 will be published on Tuesday, July 25 via the Federal Register. Employers may commence using the new version of the Form I-9 on August 1, 2023. The current version (10/21/2019) may be used through October 31, 2023, and the new version must be used beginning November 1, 2023.

The New Version of the Form I-9

DHS has announced that the new version of the Form I-9 will have the following updates:

1. Both Section 1 and Section 2 on one page (yep, going back to the old style!).
2. New Supplement A for Preparer and/or Translator (formerly part of Section 1) and Supplement B for Reverification and Rehire (formerly Section 3).
3. USCIS removed the use of “alien authorized to work” in Section 1 and changed the language to “noncitizen authorized to work.”
4. Ensured that the Form I-9 could be filled out on tablets and mobile devices.
5. Updated the notice at the top of the Form I-9 that explains how to avoid discrimination in the Form I-9 process.
6. The instructions will no longer require individuals to input “N/A” in many fields.
7. The Lists of Acceptable Documents (LOAD) will be updated to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation.
8. Added a check box that eligible employers must check if the employee’s Form I-9 documentation was examined under a DHS-authorized Alternative Procedure (discussed below) as opposed to via physical (in-person) examination.

The New Optional Alternative Procedure for Review of I-9 Documentation

With respect to the Form I-9 Employment Eligibility Verification process, some good things may have come out of COVID-19. It was once inconceivable to think the Federal government would change the “physical review” requirement for Form I-9 documentation inspection. As technology has advanced – not only in our personal lives but also in the workplace – it seems odd that employers are still required to meet with every new hire in person and physically inspect their documentation in order to complete the Form I-9 process.

DHS appears to agree that the physical review of the documentation presented for the I-9 process does not necessarily require in-person review of the documents by the employer or a designated representative. On Tuesday, July 25, 2023, a Final Rule in the Federal Register will allow for an “Alternative Procedure” to the in-person review of the I-9 documentation.

The new rule will allow employers to avoid in-person document inspection by reviewing documentation based on a new “Alternative Procedure” provided that the employer can meet specific requirements.

In order to be eligible for the “Alternative Procedure” for virtual verification of I-9 documentation, an employer must be a “Qualified Employer.” This means the employer must be enrolled in, and in good standing with, E-Verify. Additionally, the employer must be enrolled at every hiring site in the United States that allows virtual verification under the alternative procedure. (Note: the employer is not required to be enrolled in E-Verify at every hiring site; however, only hiring sites enrolled in E-Verify are eligible.)

The employer must offer the Alternative Procedure consistently to all new hires (and for all reverifications) at a hiring site or to none. The only permissible exception is that the employer may choose to use the Alternative Procedure only for remote employees and not for employees that work onsite or in a hybrid capacity, as long as the employer does not adopt such a practice for a discriminatory purpose.

The employer’s E-Verify users must have undergone an E-Verify tutorial that includes fraud awareness and anti-discrimination training. ( E-Verify will be releasing a new tutorial that will include fraud awareness and anti-discrimination components.) The new components of the training are only required for newly enrolling employers. Existing E-Verify employers may also take the revised tutorial, but are not required to do so to use the alternative procedure.

Other requirements for qualified employers:

1. The employer (or an authorized representative) must obtain from the employee and retain clear copies of the front and back of the documentation presented by the employee for Form I-9 purposes to verify identity and work authorization.
2. The employer (or an authorized representative) must examine the copies of the Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine.
3. After the employee transmits a clear copy of the documentation to the employer (or an authorized representative), the employer (or an authorized representative) must conduct a live video interaction with the employee in which the employee displays the same documentation that was transmitted to the employer (or an authorized representative).
4. The employer (or an authorized representative) must indicate on the Form I-9 that an Alternative Procedure was used to examine documentation to complete Section 2 or for reverification. Users of the new 1-9 form (to be released August 1, 2023) will need to complete the box on the Form I-9 to indicate that an Alternative Procedure was used. Employers not using the version of the Form I-9 (the 10/21/2019 version may be used through 10/31/2023), must note “Alternative Procedure” with the date of the live video interaction in the “Additional Information” field in Section 2.

Employers meeting all of the above requirements may conduct a virtual inspection of the documents and will no longer be required to conduct in-person meetings with new hires to complete the Form I-9.

The Alternative Procedure and the End of COVID-Era Policies

The COVID-19 flexibilities that permitted virtual review of the I-9 identity and work authorization documents for employees working remotely due to COVID-19 will end July 31, 2023. DHS previously announced in May 2023 that employers who complied with temporary I-9 flexibilities due to the COVID-19 pandemic have a deadline of August 30, 2023, to conduct in-person review of Form I-9 documentation.

Employers that are required to conduct a physical inspection of the documents by August 30, 2023, are eligible to conduct the I-9 updates by the August 30 deadline using the Alternative Procedure provided that they are Qualified Employers AND also meet the following criteria:

1. The employer was enrolled in E-Verify at the time that they completed virtual/remote examination of the employee’s I-9 documentation for Section 2 or reverification.
2. The employer created an E-Verify case for the new hire (not applicable for reverification).
3. The initial remote/virtual document examination was performed between 03/20/2020 and 07/31/2023.

If an employer meets the above requirements, then the employer may use the Alternative Procedure to update the Forms I-9s in lieu of in-person document examination. This means that the employer will need to conduct ANOTHER virtual inspection of the I-9 documentation and annotate the Forms I-9 to acknowledge use of the Alternative Procedure. It is also important to note that these employers should not create a new case in E-Verify. The employer utilizing this Alternative Procedure to complete the “physical inspection” by August 30 must perform the following actions:

1. The employer must make sure that it obtains and retains legible copies of the front and back of the documentation presented by the employee for Form I-9 purposes. If the employer retained copies of the documents from the initial remote /virtual inspection, the employer does not need to obtain new copies of the documents unless the employer did not retain copies of the front and back of the document(s) and/or the employee presents new documents for this virtual examination.
2. After the employee transmits a legible copy(ies) of the documentation to the employer (or authorized representative), the employer (or authorized representative) must conduct a live video interaction with the employee in which the employee must display the documentation that they previously transmitted.
3. The employer must notate on the Form I-9 that the required update to the Form I-9 was conducted using the Alternative Procedure. Users of the new 1-9 form (to be released August 1, 2023) will need to complete the box on the Form I-9 to indicate that an Alternative Procedure was used. Employers not using the version of the Form I-9  (the 10/21/2019 version may be used through 10/31/2023), must note “Alternative Procedure” with the date of the live video interaction in the “Additional Information” field in Section 2.

If the employer was NOT enrolled in E-Verify at the time that the remote/virtual review of the Form I-9 documentation was conducted, the employer is required to physically examine the employee’s documentation in order to meet the August 30 deadline to conduct the in-person inspection. Enrolling in E-Verify now will not permit such employers to utilize this Alternative Procedure to meet the August 30 deadline for physical (in-person) inspection.

It is anticipated that DHS will provide additional guidance shortly. Stay tuned for more information on these very exciting developments!

If you have any questions, please contact your attorney at WR Immigration.