Recent I-9 Updates

By Shelley Starzyk, Immigration Attorney

The Department of Homeland Security (DHS) recently announced a series of changes to the Form I-9 verification process and compliance rules. Below is a summary of the relevant changes that could impact employers.

Form I-9 COVID-19 Flexibilities Ended on July 31, 2023, and Employers Must Attain Compliance by August 30, 2023.

DHS announced that the Form I-9 flexibilities in place since the start of the COVID-19 pandemic will end on July 31, 2023. As of August 1, 2023, employers must return to verifying a new employee’s I-9 work authorization documents in person within the first three days of the employee starting employment.

Employers will also need to complete in person verification of the I-9 supporting documents for employees hired between March 20, 2020, and July 31, 2023, who previously provided their I-9 documentation of work authorization virtually. Employers must complete the I-9 in person document verification process for these employees prior to the August 30, 2023 deadline. For employees continuing to work remotely, employers can utilize designated representatives (family, friends, or acquaintances over 18 years of age) to assist with the in-person verification of documents and completing Section 2 of the Form I-9.

Because of these changes, Parker Gallini recommends employers immediately take proactive steps to re-verify I-9 documents for employees who virtually presented their I-9 work documentation during the COVID-19 pandemic.

DHS Announces New Alternative Procedure Available to Participating E-Verify Employers

Recently, DHS announced a new Form I-9 alternative procedure, available only to qualified E-Verify employers who are enrolled and in good standing with the E-Verify program. This new alternative procedure is now available. In some cases, qualified employers may use this alternative procedure for reverification of I-9 documentation verified remotely during the COVID-19 pandemic. This alternative procedure consists of a series of steps allowing for remote I-9 verification of documents. The alternative procedure requires the employer to take the following steps within the first three days of employment:

1. The Employer must request and examine copies of employee’s Form I-9 documents (front and back of all two-sided documents) to ensure documentation reasonably appears genuine;
2. After examining the documents provided, the Employer must then conduct a live video interaction with the employee presenting the Form I-9 documents on video to ensure documents reasonably appear to be genuine and related to the individual;
3. The Employer must indicate on the Form I-9 that they used the alternative procedure to examine documents in the appropriate section;
4. The Employer must retain a clear and legible copy of all verified documentation (front and back if applicable); and
5. The Employer must make available the clear and legible copies of the identity and employment authorization documentation presented by the employees under this alternate procedure for the I-9 verification/reverification process in the event of an I-9 audit or inspection.

It is important to note that DHS permits employers the option of using these new alternative procedures. Employers may choose to continue only in person I-9 verifications. If an employer chooses to utilize this alternative procedure, they must consistently apply the procedure, and maintain consistent records. Employers cannot discriminate in determining employee eligibility for the alternative procedure. Employers should either use this alternative procedure for all employees consistently, or they can consistently apply alternative procedure for remote employees only and perform an in-person verification for all other employees. DHS notes that an employee can always request the employer perform a physical examination of their documents, even if the employer uses alternative procedures.

As noted above, under certain circumstances, qualified employers may use the alternative procedures for reverifying employee documents previously examined remotely under COVID-19 flexibilities. To be eligible to use the new alternate procedure for reverification of documents previously examined under the COVID-19 flexibilities qualified E-Verify employers must have:

1. Been enrolled in E-Verify at the time of the remote examination for Section 2 or reverification;
2. Created an E-Verify case for employee (unless this was a reverification); and
3. Performed the remote inspection between March 20, 2020 and July 31, 2023.

If an employer does not meet all the above criteria, then the employer cannot use this alternative procedure and must examine the employee’s I-9 documentation in person per DHS guidance.

New Form I-9 Released August 1, 2023:

DHS also released a new edition of the Form I-9 on August 1, 2023. Employers should start to use this form immediately. Employers may opt to use the October 21, 2019 edition of Form I-9 through a designated grace period, ending on October 31, 2023. After October 31, 2023, employers must use the August 1, 2023 edition of Form I-9.

For more information, contact your Parker Gallini immigration attorney.