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HR Law Alert: New Form I-9 and Remote Verification Procedure Rolled Out

Updated I-9
A new Form I-9 (Rev. 08/01/23) will be available for employers to use on or after August 1, 2023, and once released can be found on the USCIS website. Employers can also order paper copies if they don’t want to use the electronic version. The version date, noted in parenthesis, can be found in the bottom corner of the Form I-9.

The prior version of Form I-9 (Rev. 10/21/19) continues to be effective through October 31, 2023. Beginning November 1, 2023, only the Form I-9 (Rev. 08/01/23) will be accepted. Employers shouldn’t complete the new Form I-9 (Rev. 08/01/23) for current employees who already have a properly completed Form I-9 on file, unless reverification applies after October 31, 2023.

The overhaul to the Form I-9 is quite extensive and includes the following changes:

* Section 1, Preparer/Translator Certification, is now a standalone document (Supplement A) that employers can provide to employees when necessary.
* Section 3, Reverification and Rehire, is now a standalone document (Supplement B) that employers can use if reverification is required.
* The Form I-9 can now be filled out on tablets and mobile devices as well as easily downloaded.
* The term “alien authorized to work” in Section 1 has been replaced with “noncitizen authorized to work.”
* The Lists of Acceptable Documents page now includes acceptable receipts, as well as guidance and links to information on automatic extensions of employment authorization documents.
* A box has been added that eligible employers need to check if the Form I-9 documentation was examined using the new alternative verification procedure.
* The instructions have been, mercifully, reduced from 15 pages to eight.

Action Item
By November 1, 2023, ensure that you’re using the new Form I-9 (Rev. 08/01/23) for all new hires and reverifications.

Remote Verification, aka “Alternative Procedure” for Form I-9 Verification
Qualified employers are allowed to conduct Form I-9 remote documentation verification for any employee hired on or after August 1, 2023. Employers need to follow specific steps to remotely verify Form I-9 documents—USCIS has dubbed this the alternative procedure.

If an employer offers the alternative procedure at a particular hiring site, it needs to be offered to all employees at that site. There is an exception, however, if employers want to offer the alternative procedure only to remote employees and do in-person inspection for onsite and hybrid employees. Employers can’t choose when to use remote or in-person verification based on a person’s or group of employees’ citizenship or immigration status, national origin, or any other protected characteristic.

The Meaning of Qualified Employer
Qualified employers are those that are participants in good standing in federal E-Verify. Employers are in good standing if all of the following are true:

* They have enrolled in E-Verify for all hiring sites in the United States that use the alternative procedure
* They are compliant with all E-Verify program requirements
* They continue to be enrolled in E-Verify and in good standing at any time when they use the alternative procedure

Alternative Procedure Steps
An employer needs to take the following steps within three business days of an employee’s first day of employment:
1. Receive and examine copies of the employee’s Form I-9 documents (or an acceptable receipt) and determine if the documents appear to be genuine. If the documents are two-sided, employers need to examine copies of both the front and back.
2. Conduct a live video meeting with the employee. The employee needs to bring the same documents that they sent to the employer so the employer can ensure that they reasonably appear to be genuine and relate to the employee.
3. Check the box on Form I-9 (Rev. 08/01/23) that an “alternative procedure” was used to examine documentation to complete Section 2 or re-verification. If an employer is using the old form (Rev. 10/21/19) they should write “alternative procedure” in the Additional Information field in Section 2.
4. Retain clear and legible copies of all documents that the employee sent to complete Form I-9, regardless of whether the documents are from List A, List B, or List C.

Employers can’t require employees to use the alternative procedure if they don’t want to and will need to perform an in-person examination for those unable or unwilling to participate in the remote verification process. This could arise when new employees don’t have access to the necessary technology or are uncomfortable transmitting sensitive personal information electronically, particularly if the employer hasn’t provided a secure way for them to do so.

The Alternative Procedure and COVID-19 Flexibilities
Qualified employers can use the alternative procedure to satisfy the requirement to physically examine Form I-9 documentation that was examined remotely under the COVID-19 flexibilities, but only if all of these conditions are met:

* They were enrolled in E-Verify at the time the remote examination for a new hire or a re- verification occurred
* They created an E-Verify case for the employee, except in the case of a re- verification
* They performed the remote inspection between March 20, 2020, and July 31, 2023

Employers should follow the alternative procedure steps and write “alternative procedure” and the date of the live video meeting on the Form I-9 in Section 2 in the Additional Information box or the section used for re-verification, whichever applies. They should not create a new case in E-Verify.

Action Item
If you aren’t using E-Verify but want to utilize the alternative procedure, begin the enrollment process now. You can start by seeing what’s needed to enroll here.

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