DHS Announces New Form I-9 and Document Verification Guidelines

The US Department of Homeland Security (DHS) announced on July 21, 2023 the modernization of the I-9 process following the COVID-19 pandemic, including through new guidelines expanding the use of E-Verify, the DHS’s employment eligibility verification website, and updates to streamline Form I-9.

Currently, under Immigration and Nationality Act employment eligibility verification rules, US employers are required to review original identity and employment authorization documents in the presence of the employee in person. Now, under a newly announced policy change, employers enrolled in E-Verify that are in good standing will be able to review and verify employees’ identity and employment authorization documents electronically. E-Verify is a US government electronic employment eligibility verification system that is optional except where mandated by certain state and federal laws.

Expansion of E-Verify

Pursuant to the new guidelines, the United States Citizenship and Immigration Services (USCIS) will publish a revised version of Form I-9, Employment Eligibility Verification, to become available as of August 1, 2023. Among numerous other updates, the new form will contain a checkbox enabling E-Verify employers to confirm their remote review and verification of the requisite documents.

Under the new system, qualifying employers enrolled in E-Verify can examine copies of an employee’s identity and employment authorization documents, conduct a live video meeting with the employee, and create an E-Verify case if the employee is newly hired. Subsequently, copies of the relevant documents must be retained by the employer and made available for inspection in the event of an audit. The document review process and I-9 verification must still be completed within three business days of the first date of employment.

Qualifying employers are not required to use the new process and can continue to complete I-9 verification under the existing guidelines. However, if the remote verification system is utilized, it must be applied consistently to all employees at the E-Verify worksite. The exception is that employers can opt to apply the alternative procedure to employees who work remotely while maintaining physical document inspection for all on-site and hybrid employees. This practice must be applied uniformly throughout all qualifying worksites.

Employers that were enrolled in E-Verify during the COVID-19 flexibilities can use the new process to satisfy the requirement of verifying Form I-9 documentation that had previously been reviewed remotely by August 30, 2023. This exemption applies to employers that (1) were enrolled in E-Verify when remotely reviewing an employee’s I-9 documentation for Section 2 or reverification, (2) created an E-Verify case for that employee (except for reverification), and (3) performed the remote document inspection between March 20, 2020 and July 31, 2023.

Those US employers that are not enrolled in E-Verify must conduct an examination of original identity and employment authorization documents by August 30, 2023 for employees (1) who were hired on or after March 20, 2020 and (2) whose documents were examined only virtually or remotely pursuant to the temporary flexibilities provided during the COVID-19 pandemic.

Amendments to Form I-9

In addition to adding the option for certification of remote document verification for E-Verify employers, the DHS and USCIS have made further amendments to Form I-9 to streamline completion and improve usability. Specifically, the updated form will include the following revisions:

• Sections 1 and 2 will be condensed to a single page.
• The form will be formatted to enable completion on tablets and mobile devices.
• The Preparer/Translator Certification section will become a supplement that can be provided to employees if needed.
• The Reverification and Rehire section will become a supplement that can be printed if needed.
• The Acceptable Documents list will be revised to include certain receipt notices and incorporate relevant guidance on automatic extensions of employment authorization documentation.
• The form instructions will be reduced substantially.

The new form can be used when it becomes available on August 1, 2023. While employers have the option of using the current Form I-9 through October 31, 2023, the new version of the form will become mandatory for all employers as of November 1, 2023.

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