by Luke Phillips
The U.S. Department of Homeland Security (“DHS”) has promulgated a new version of the Form I-9, which is now available for use (please also see new Form I-9 Instructions). The new I-9 has reduced Sections 1 and 2 to a single sheet, and has relocated the Reverification and Rehire section to a separate “Supplement B” page, among other changes. While employers are permitted to use the previous I-9 through October 31, 2023, we encourage all employers to begin using the new I-9 as soon as possible. Only the new I-9 will be acceptable starting November 1, 2023.
DHS and U.S. Immigration and Customs Enforcement (“ICE”) have also announced that employers have until August 30, 2023 to physically inspect all I-9 documents that were previously examined remotely using the COVID-19 flexibilities. DHS, however, is now allowing for remote examination of I-9 documents for E-Verify employers (please see the published rule in the Federal Register and a USCIS overview). Employers that are not enrolled in E-Verify must physically inspect all I-9 documents.
To qualify for the alternative remote examination procedure, the employer must have:
- performed remote examination of an employee’s documents between March 20, 2020, and July 31, 2023;
- been enrolled in E-Verify at the time they completed the I-9 for that employee;
- created a case in E-Verify for that employee (except for reverification); and
- be currently enrolled in and continue to participate in E-Verify.
Employers that meet all four requirements may choose to utilize the new alternative procedure to satisfy the I-9 document inspection requirement by August 30, 2023. Those that utilize the alternative procedure must remotely examine I-9 documents by conducting a live video interaction for each employee whose documents were examined remotely under the COVID-19 flexibilities but never in-person physically examined. Employers who do not meet all four requirements, however, must perform an in-person physical examination of Form I-9 documents by August 30, 2023.
USCIS has directed employers that utilize the alternative remote examination procedure to retain clear and legible copies of all I-9 documentation (front and back, if two-sided) presented by employees going forward. On the new I-9, employers should check the box to indicate use of the alternative procedure in the Additional Information field in Section 2. On the soon-to-be-expired I-9, employers should notate “Alternative Procedure” in the Additional Information field in Section 2. USCIS has provided several examples on how to notate the I-9 in cases where employees’ documents were examined remotely during the COVID-19 flexibilities period, and now need to be physically inspected or remotely inspected according to the new alternative procedure by August 30, 2023.
For further directions regarding the new I-9, the alternative remote examination procedure, and upcoming deadlines, please visit the USCIS “I-9 Central” webpage.
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Immigration – The Firm represents businesses, institutions of higher learning, and individuals with respect to immigration-related matters, including obtaining visitor visas, temporary and permanent work visas, consular processing of visas, obtaining citizenship, advising employers on employment sanctions issues, and defending employers faced with INS I-9 audits and investigations.
Luke T. Phillips practices primarily in the area of immigration law, representing corporations and institutions of higher education with their immigration needs, including obtaining temporary and permanent visas, handling employer sanctions issues, I-9 and E-Verify employment eligibility verification compliance, consular processing, and naturalization.