ARTICLE
11 August 2023

DHS Releases New Form I-9 As New Flexibility For Qualified Employers Takes Effect

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Mintz

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Mintz is a general practice, full-service Am Law 100 law firm with more than 600 attorneys. We are headquartered in Boston and have additional US offices in Los Angeles, Miami, New York City, San Diego, San Francisco, and Washington, DC, as well as an office in Toronto, Canada.
On August 1, 2023, the Department of Homeland Security (DHS) published a new version of Form I-9 as part of its Final Rule regarding Form I-9 document examination.
United States Immigration
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On August 1, 2023, the Department of Homeland Security (DHS) published a new version of Form I-9 as part of its Final Rule regarding Form I-9 document examination. As explained in a prior alert, the Final Rule provides for an alternative procedure that allows remote document review and verification for certain qualified employers that are enrolled in, and in good standing with, the DHS E-Verify system.

The new version of Form I-9 is in effect at this time. The prior edition of Form I-9 (10/21/2019 edition date) may still be used through October 31, 2023.

The new Form I-9 has the following features:

  • The main form is now one page.
  • The form has a box underneath the "Additional Information" section that qualified employers must mark when they have used the "alternative procedure" to examine employee documents remotely.
  • There are two "Supplement" pages.
  • Supplement A must be completed if a preparer or translator prepares Section 1 on behalf of the employee.
  • Supplement B is for Reverification, either for current employees with expiring work authorization documentation, or for rehires when applicable. Similar to Section II of the Form, Supplement B contains a box next to the "Additional Information" field that qualified employers must mark when they use the alternative procedure to examine employee documents remotely.

Under the new policy, qualified employers are no longer required to perform in-person inspections of I-9 documents for new hires, and may now use an alternative procedure to inspect documents remotely, as described in additional detail below. However, employers that are not "qualified" must perform in-person inspections of identity and employment documents for all new hires, and for all reverifications for existing employees, even if the employees do not report to a company location.

Employers may no longer rely on the flexibility policy that was in effect between March 20, 2020 and July 31, 2023 due to the COVID-19 pandemic.

Details of Optional Alternative Procedure to Physical Document Examination:

As mentioned above, qualified employers may perform remote Form I-9 completion and document inspection for new hires and for reverification of Forms I-9 for existing employees.

E-Verify Registration and Participation

Employers must be enrolled in E-Verify and be in good standing in order to use the new I-9 alternative procedure. E-Verify currently allows employers to enroll the entire company or to enroll certain company worksites in E-Verify. For employers that have enrolled only for specific worksites (called "hiring sites" in the Final Rule), the employer may only use the alternative procedure for individuals who are hired to work in those particular hiring sites.

E-Verify enrollment instructions and a description of employer obligations can be found here.

For Qualified Employers, Which Employees Can Complete Form I-9 Using the Alternative Procedure?

According to the comments in the Final Rule:

  • A qualified employer does not need to use the alternative procedure and may choose to continue to perform an in-person review of I-9 documentation.
  • If a qualified employer chooses to apply the alternative procedure to employees at an E-Verify hiring site, that employer must either:
    • Use the alternative procedure consistently for all employees at that site, without discrimination; or
    • Use the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity. This dual approach is permissible "so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic, i.e., their citizenship, immigration status, or national origin."

Alternative Procedure for Completing Form I-9

Qualified employers may use the alternative procedure for document inspection for new hires and for I-9 reverification for existing employees whose I-9 documents are expiring. The procedure for each is as follows:

For New Hires:

Within three business days of an employee's first day of employment, a qualified employer (or an authorized representative acting on the employer's behalf, such as a third-party vendor) must:

  1. Receive clear copies (such as a scan or a picture) of I-9 identity and work authorization document(s) (front and back, if the document is two-sided) from the new hire.
  2. Examine copies of Form I-9 documents to ensure that the documentation presented reasonably appears to be genuine.
  3. Conduct a live video interaction with the new hire and review the same I-9 document(s) that were previously received to ensure that the documentation reasonably appears to be genuine and related to the individual.
  4. Indicate on the Form I-9 that an alternative procedure was used to examine documentation. The new Form I-9 has a box that must be checked to confirm that the alternative procedure was used; for the prior Form I-9, the employer representative must write "alternative procedure" in the "Additional Information" field in Section 2.
  5. Retain a clear and legible copy of the documentation (front and back, if the documentation is two-sided).
  6. In the event of a Form I-9 audit or investigation by a relevant federal government official, make available copies of I-9 documents presented by the employee.

For Existing Employees Who Require I-9 Reverification:

Employers should use the same procedures as above. On the prior Form I-9 in Section 3 ("Reverification and Rehires"), the employer should write "alternative procedure" to confirm that it used the alternative procedure. This should be done on the same I-9 form that was originally completed and not on a new form.

On August 21, 2023, Mintz will host a webinar to discuss the new I-9 rules, the new I-9 form, and any additional developments. [Register Here]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
11 August 2023

DHS Releases New Form I-9 As New Flexibility For Qualified Employers Takes Effect

United States Immigration

Contributor

Mintz is a general practice, full-service Am Law 100 law firm with more than 600 attorneys. We are headquartered in Boston and have additional US offices in Los Angeles, Miami, New York City, San Diego, San Francisco, and Washington, DC, as well as an office in Toronto, Canada.
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