Now in Effect: Material Changes to the Form I-9 Made By DHS
REMINDER: As reported in the below client alert, the United States Citizenship and Immigration Services (USCIS) division of the U.S. Department of Homeland Security (DHS) announced a new version of the Form I-9, Employment Eligibility Verification in July 2023. For the past few months, employers have been permitted to continue to use the previous version of the form or to start using the new version. That changes starting on November 1, 2023. As of that date, the previous version will become obsolete and, as such, all employers must use only the new version of the I-9 or be subject to penalties. The new version can be found below.
08.02.23
Under the Immigration Reform and Control Act (IRCA), employers are required to complete a Form I-9 upon hiring new employees to work in the United States to verify employees’ identity and employment authorization. On July 25, 2023, the United States Citizenship and Immigration Services (USCIS) division of the U.S. Department of Homeland Security (DHS) announced a new version of the Form I-9, Employment Eligibility Verification.
On August 1, 2023, the agency released the form. The form has been streamlined and includes significant changes. The revised I-9 form can be found here.
Some of the Changes to Form I-9.
- Sections 1 and 2 are now on a single page.
- The form is now fillable on tablets and mobile devices. Including a checkbox allowing employers registered with E-Verify to indicate that they examined the Form I-9 documentation via live video interaction under a DHS-authorized alternative procedure, rather than physically examining it in-person.
- The phrase “alien authorized to work” in Section 1 has been replaced with “noncitizen authorized to work.”
- The difference between “noncitizen national” and “noncitizen authorized to work” has been clarified.
Although employers should have begun to use the new Form I-9 yesterday, the prior version of the Form I-9 will be effective through October 31, 2023. USCIS is allowing this additional time to enable employers to make necessary updates and adjust their business practices. Beginning November 1, 2023, employers who fail to use the new Form I-9 may be subject to penalties. Employers are not required to complete the new Form I-9 for current employees who already have properly completed a Form I-9 on file, except when reverification applies after October 31, 2023.
Not only is it important for employers to begin to use the correct Form I-9 now, but employers must be aware that they may be required to physically inspect and identify employment eligibility documentation that they previously had been permitted to inspect electronically. Specifically, during the COVID-19 pandemic, USCIS allowed employers to remotely verify Form I-9 documents for employees working exclusively in remote settings. That temporary policy, however, expired on July 31, 2023.
Now, unless an employer participates in E-Verify, it is required to physically inspect identity and employment eligibility documentation in person, including any documentation that was inspected remotely during the pandemic. These inspections must be completed no later than August 30, 2023.
Employers may use an authorized representative, on the employer’s behalf, to complete the in-person physical verifications of the employee’s Form I-9 documentation. Employers must verify documents in a consistent non-discriminatory manner for all employees.
Given these recent updates, employers that hired employees during the COVID-19 pandemic should review each employee’s Form I-9 and determine whether it needs to be re-verified in advance of the August 30, 2023 deadline.
Co-authors Lee Moylan, chair and Stephanie Wolbransky, associate, are members of the labor and employment practice at Klehr Harrison.