On August 1, 2023, United States Citizenship and Immigration Services (“USCIS”) released a new Form I-9 that employers must use to verify the identity and employment authorization of their employees. The new form recognizes the recent expansion of remote and hybrid work and must be used starting November 1, 2023.
The new Form I-9 is more concise and provides additional verification options accommodating the recent shifts to remote and hybrid work schedules. Most prominently, it adds a checkbox to indicate whether an employee’s documentation was examined using “an alternative procedure” set forth by the Department of Homeland Security (“DHS”). The “alternative procedure” will provide employers that participate in E-Verify and are in good standing with the option to examine documents remotely via a live video interaction. The employee is required to transmit a copy of the relevant document and then present the same document to the employer’s verifier during the video call. Employers are required to retain copies of documents presented virtually, just as with documents examined in person.
Employers that implement the alternative method should apply rules consistently to avoid potential liability for discrimination. For example, while employers may choose to use an alternative method for an entire worksite or only for remote and/or hybrid employees, they may not base eligibility for the alternative method on a protected characteristic, such as citizenship, immigration status, or national origin.
The alternative method is currently only available to certain employers (i.e., those that participate in E-Verify and are in good standing). However, it is expected that the DHS will eventually expand eligibility to all employers.
The new form is available on the USCIS website. Employers may continue to use the old Form I-9 (Rev. 10/21/2019) until October 31, 2023, but will be subject to penalties for using the prior form after that time.
How do Employers Complete the New Form I-9?
The Form I-9 has been shortened and simplified. It now contains two sections and two supplements:
As always, employers are required to maintain Forms I-9 for the duration of employment must continue to maintain the forms for either three years following the date of hire or one year after separation, whichever is later. Further, Forms I-9 must be made available for inspection upon request by the DHS, Department of Justice, or the Department of Labor.
What’s Different in the New Form I-9?
The New Form I-9 contains the following changes:
What Does the New Form I-9 Mean for Employers?
The new Form I-9 reflects the federal government’s understanding that changes must be made to streamline the employment verification process and adapt to remote and hybrid work. This development provides added flexibility and additional options, which employers can utilize to accommodate needs in their unique work environments. As always, employers should carefully implement any new processes, including the DHS’s new alternative remote employment verification process.
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