On July 25, 2023, the United States Citizenship and Immigration Services (“USCIS”) published a notice to inform the public that the Employment Eligibility Verification Form (“Form I-9”), has been updated. Employers are encouraged to familiarize themselves with the updated form and the methods available for completing the new Form I-9, including the E-Verify option. As such, this post is intended to summarize some of those updates and alert employers about the approaching Form I-9-related deadlines.
General Background
Between March and September of 2022, USCIS and the Department of Homeland Security (“DHS”) ran congruent efforts to gauge the public’s perspective on proposed changes to the Form I-9 and related review procedures (see our post from early 2022 that highlights some of the proposed changes here). USCIS published two information collection notices and reviewed and responded to hundreds of comments between the two information collection notices. DHS issued a Notice of Proposed Rulemaking and sought comments on an optional alternative to the required in-person physical document examination method. DHS has since published the Final Rule, which is available in the Federal Register.
Form I-9 Amendments
Amendments have been implemented for both Form I-9 and its correlating instructions. The goal of the amendments is to reduce employers’ and employees’ respective burdens when completing the form. Some of the major changes to Form I-9 are listed below:
Section 1 and Section 2 have been reduced to one, shared, single-sided sheet.
Section 3 has been moved to a separate supplement form, Supplement B.
Form I-9 can now be filled out on tablets and mobile devices.
A box has been added to indicate that an employee’s Form I-9 documentation was examined via a DHS-authorized alternative procedure instead of via physical examination.
To correlate with the Form I-9 amendments, the instructions were also revised. Some of these changes include shortening the length of the instructions from fifteen (15) pages to eight (8) pages and adding a section on how employers are to utilize the new checkbox for alternative Form I-9 review procedures.
The Final Rule: Alternative Review Procedure
In conjunction with the new Form I-9, DHS, in partnership with the Social Security Administration (“SSA”), has modernized employment eligibility verification, taking steps to offer certainty and flexibility to American businesses considering the realities of post-COVID work cultures where remote employment has become increasingly prevalent. E-Verify is a free, flexible, and electronic option for employment eligibility verification that advances DHS’s mission of safeguarding the integrity of the employment eligibility verification process. Employers should not be intimidated by this process as DHS has ensured employers have access to information about this program. The E-Verify website provides information and resources, including webinars, to employers about the alternative verification method, E-Verify qualifications, and the enrollment process.
Under the current requirements, employers are required to conduct a physical examination of Form I-9 documentation within three business days after the first day of employment of a new hire. Employers who enroll with E-Verify will have the option to complete the review process via either physical or remote examination. Employers that do not qualify for the E-Verify program must perform all required physical examinations of identity and employment authorization documents for those employees hired after March 20, 2020, and for those employees who have received only a virtual or remote examination under the temporary COVID-19 accommodations.
Noteworthy Dates
As a reminder, the temporary COVID-19 accommodations permitting remote review of employee identification and employment authorization documents ends today, July 31, 2023 (see our prior post on the topic here). Employers who elect not to enroll in, or who do not qualify for, the E-Verify program have until August 30, 2023 to become compliant with Form I-9 physical examination requirements.
Starting August 1, 2023, employers can download or purchase the paper versions of the updated Form I-9 from USCIS’s website. Like the current Form I-9, a Spanish language version of the new Form I-9 will also be available on USCIS’s website. The current version of the Form I-9 continues to be effective through October 31, 2023. As such, starting November 1, 2023, the current version of Form I-9 will be discontinued and invalid.
Employers that are working to gain compliance by the August 30, 2023 deadline should be careful to avoid unnecessary verification for current employees with a properly completed Form I-9 on file. Unnecessary verifications could result in a violation of the anti-discrimination provision of the Immigration and Nationality Act.
If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Katherine T. McCarley at (585) 258-2820 or kmccarley@underbergkessler.com.