Reminder: New Form I-9 Required Starting November 1, 2023

The U.S. Department of Homeland Security (DHS) published the new edition of the Form I-9 and employers are required to use this new version starting on November 1, 2023. While the new Form I-9 does not substantively change the legal requirements for employers and employees, it does attempt to simplify the form through reducing Sections 1 and 2 to a single sheet and now includes supplemental pages that can be used when required (for example, when a Preparer/Translator Certification is used, or when the employer is conducting a Section 3 reverification). Additionally, the new Form I-9 includes a new checkbox for eligible E-Verify employers who elect to examine its employees’ identity and work authorization documents remotely using the Alternative Procedure that was implemented by DHS on August 1, 2023.

Notable Changes to the New Form I-9:

• ​Page 1 of the new Form I-9 now includes both Section 1 and Section 2.
• Lists of Acceptable Documents has been updated to include Acceptable Receipts.
• Supplement A of the new Form I-9 is to be used when the employee relies on a Preparer or Translator to complete Section 1. Previously, this section was included on page 1.
• Supplement B of the new Form I-9 is to be used by employers for Reverifications and Rehires and replaces Section 3 of the previous Form I-9 versions.
• Alternative Procedure Checkbox for eligible E-Verify employers who conduct remote inspection of the employee’s identity and work authorization documents. Additional details regarding the alternative procedure are summarized below.

Optional Alternative Procedure to Physical Document Examination for Eligible Employers:

In order to address the prevalence of employees who work remotely, employers who participate in E-Verify and who are in good standing are eligible to remotely examine employees’ identity and work authorization documentation using the DHS-authorized Alternative Procedure at their E-Verify hiring sites. Please note, employers who choose to offer the Alternative Procedure to new employees at an E-Verify hiring site must do so consistently for all employees at that site.

Employers should not adopt practices that are discriminatory or treat employees differently based on their citizenship, immigration status, or national origin, such as by deciding that certain employees are not eligible for remote examination. However, employers are permitted to offer the Alternative Procedure for its remote hires only, and continue to apply in-person physical examination for all employees who work onsite or in a hybrid capacity.

Employers who are eligible for the Alternative Procedure are required to comply with the following remote examination procedures:

• Receive, review and examine electronic copies (front and back, if the document is two-sided) of the identity and work authorization document(s), or an acceptable receipt, to ensure that the documentation presented is valid and unexpired, is included on the Form I-9 List of Acceptable Documents, and such document(s) reasonably appear to be genuine and relate to the employee. This will generally involve the employee scanning and emailing, or texting a photo, of the documents the employee is using for the Form I-9 process. This can be one document from List A (which establishes identity and work authorization); or a combination of one document from List B (which establishes identity) plus one document from List C (which establishes work authorization).
• Conduct a live video interaction (Teams meeting, Zoom, FaceTime, etc.) with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and reasonably appears to relate to the individual. The employee must present the same document(s) during the live video interaction that were transmitted electronically to the employer.
• Retain a clear and legible copy of the documentation provided by the employee (front and back if the documentation is two-sided) with the completed Form I-9.
• Create the E-Verify case for the employee, if a new hire.

Once those steps have been completed, the employer will indicate that they used the Alternative Procedure on Page 1 of the Form I-9 by selecting the Alternative Procedure checkbox.

End of COVID-19 Flexibilities:

Employers are reminded that effective August 30, 2023, all Form I-9s that were completed using the COVID-19 remote flexibilities were required to be physically inspected. Employers should have either conducted the physical document inspection in person for all hires whose documents were remotely inspected under the COVID-19 flexibilities or completed the examination remotely using the Alternative Procedure after August 1, 2023. For those employers who have not yet completed the inspection of the Form I-9s that were completed under the COVID-19 flexibilities, such Form I-9s should be addressed as soon as possible under the Alternative Procedures or through physical inspection.

Please note that employees who are unable or unwilling to submit documentation remotely using the Alternative Procedure must still be allowed to submit documentation for in-person physical examination. As a reminder, employers who are not eligible to use the Alternative Procedure or who have an employee who is unable or unwilling to submit documentation remotely may still use third-party authorized representatives for the physical inspection of the Form I-9 documents. 

Employers with questions regarding the new Form I-9, the Alternative Procedure for remote document inspection, the use of authorized representatives, E-Verify, or other I-9 issues, should contact their legal representative. Members of the Williams Mullen Immigration Team are available to assist on all of these I-9 issues.