What Employers Should Know About the Updated Form I-9

United States Citizenship and Immigration Services (USCIS) announced July 21 a new Form I-9—which has been streamlined and shortened—that employers should use beginning Aug. 1, 2023.

Employers may continue to use the older Form I-9 (Rev. 10/21/19) through Oct. 31, 2023. After that date, they will be subject to penalties if they use the older form. The new version will not be available for downloading until Aug. 1.

Additionally, the U.S. Department of Homeland Security (DHS) issued a final rule that allows the agency to create a framework under which employers can implement alternative document examination procedures, such as remote document examination. The new form subsequently has a checkbox to indicate when an employee’s Form I-9 documentation was examined using a DHS-authorized alternative procedure.

DHS confirmed that only employers that use E-Verify who are in good standing may continue to conduct verifications electronically after Aug. 1, 2023, though the stage has been set for permanent remote examinations to become a reality for all employers based on the new rule. E-Verify employers performing remote verification must conduct a live video interview with the employee, retain copies of all documents presented in the I-9 verification process and create E-Verify cases for new employees, according to Ian Wagreich, an attorney with Hinshaw & Culbertson in Chicago.

Emily Dickens, SHRM’s chief of staff, head of public affairs and corporate secretary, said, “SHRM enthusiastically welcomes this new development, as we have been advocating for a remote Form I-9 verification process for years, particularly over the last three years with the implementation of the COVID-19 flexibilities. The Remote Form I-9 Alternative Procedure reflects the modern reality of the American workforce and HR processes and takes account of current and emerging technology – all while investing in the integrity and the security of the U.S. immigration system.”

“The new I-9 rule is a giant leap forward in that it recognizes that remote employment is prevalent and that some of the old I-9 rules needed to be updated,” said Greg Berk, an attorney with Sheppard Mullin in Costa Mesa, Calif. “E-Verify is a robust verification tool, and therefore, if an employer is enrolled in E-Verify, then allowing them more flexibility with remote employees is good policy.”

Completing the New Form I-9

Completed at the time of hire, Section 1 of the new form collects identifying information about the employee and requires the employee to attest to whether they are a U.S. citizen, noncitizen national, lawful permanent resident or noncitizen authorized to work in the United States.

Completed within three days of the employee’s hire, Section 2 of the new form collects information about the employee’s identity and employment authorization. The employee must present original documentation proving the employee’s identity and employment authorization, which the employer must review.

When new hires have preparers and/or translators assist them in completing Section 1, they should complete Supplement A.

Employers should fill out Supplement B when rehire occurs or reverification is required. This should be completed prior to the date that the worker’s employment authorization expires. Supplement B also may be used to record a name change.

Employers must maintain a person’s Form I-9 for as long as the individual works for the employer and for the required retention period after the termination of an individual’s employment (either three years after the date of hire or one year after the date employment ended, whichever is later).

Employers must make I-9 forms available for inspection upon request by officers of the DHS, the U.S. Department of Justice or the U.S. Department of Labor. Employers that don’t complete and retain I-9 forms properly may face civil money penalties and, in some cases, criminal penalties, according to the DHS.