The Department of Homeland Security (“DHS”) announced on July 21, 2023 they will publish a revised version of Form I-9 on August 1, 2023. DHS also announced an enhanced remote verification flexibility using video for E-Verify employers, both for clean-up of I-9s created during the pandemic and going forward.
Key Changes To The I-9 Form To Be Published On August 1
• Employers can use the current Form I-9 (10/21/19) through Oct. 31, 2023
• Starting Nov. 1, 2023, all employers must use the new Form I-9
• Reduces Sections 1 and 2 to a single-sided sheet
• Supplement for Preparer/Translator Certification
• Supplement for for Reverification and Rehires
• Additional Acceptable Documents and guidance for automatic extensions
• For E-Verify employers, includes a box to indicate the special remote verification of documents
New Alternative Procedure Permitting Remote Verification For E-Verify Employers Only
Starting August 1, 2023, employers enrolled in E-Verify will be allowed to follow a new flexible procedure for remote verification of I-9 supporting documents.
• Step 1: Applicant (post-offer) or Employee copies or photographs their I-9 supporting documents (front and back) and e-mails them to the employer (or via another form of transmission).
• Step 2: Employer examines the documents to ensure the documents reasonably appear to be genuine.
• Step 3: Employer conducts a live video interaction (i.e., Zoom, Teams, Google Meet, FaceTime, etc.) with the applicant or employee to ensure that the documentation reasonably relates to them. Applicant or employee must present the same documents already transmitted to the employer a second time during the live interaction.
• Step 4:Employer marks the alternative procedure box of Supplement B of the new I-9 form for new employees hired on or after August 1, 2023. Or if the employee was hired during the pandemic, then the employer notates “Alternative Procedure” in the Additional Information Box of the prior I-9 form and completes this task by August 30, 2023.
• Step 5:Employer retains the supporting documents (paper or digital) and attaches them to the I-9. (In the past, only List A documents were copied. With the new remote flexibility, the E-Verify employer must now copy and retain all List A, or List B and C documents.)
Cleanup Of Pandemic I-9s For E-Verify Employers – Due August 30
Employers who were participating in E-Verify and created an E-Verify case for employees whose documents were remotely examined during the COVID pandemic (March 20, 2020 to July 31, 2023), may now choose to use the new alternative live video procedure starting on August 1, 2023 to satisfy the physical document examination requirement by August 30, 2023.
The employer must notate “alternative procedure” with the date of video examination in the Additional Information Box on Page 2 of the older version I-9. The employer should not create a new case in E-Verify.
E-Verify employers hiring remote employees on or after August 1, 2023 should use the new I-9 form and complete the Supplement B designating the alternative procedure.
Non E-Verify Employers Cleanup Of Pandemic I-9s Due August 30
Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by Aug. 30, 2023 for any employees hired during the pandemic.
Avoiding Discrimination With The Use Of E-Verify
Employers should be mindful of the following key issues:
• E-Verify is only to be used on new hires. The only exception is employees working on a covered federal contract that requires mandatory E-Verify.
• An I-9 should never be completed until an offer is made and E-Verify should never be used until the I-9 is completed.
• Employers that were not enrolled in E-Verify at the time they initially performed a remote examination of an employee’s documents under the COVID-19 flexibilities between March 20, 2020 and July 31, 2023 may not use the qualified video flexibility on employees hired since that time unless the employee was hired after the employer enrolled in E-Verify.
• A remote employee may elect to come into the employer’s office for in-person examination of their I-9 documents.
• All employers that enroll in E-Verify and are using a digital I-9 software program that interfaces with E-Verify are required to have all users participate in mandatory anti- discrimination training. https://www.e-verify.gov/book/export/html/3802
DOJ Immigrant & Employee Rights (IER)
While employers should always strive to have perfect I-9s, if they have any doubts as to whether someone is work authorized (either a new hire or someone on an automatic extension) they should consult with counsel. DOJ will hold employers strictly liable for any inadvertent denial of employment due to a misunderstanding of whether an employee is work authorized. Along with that comes a burdensome Civil Investigation Demand, mandatory training, fines, and public shaming.
Consult With Counsel
When you encounter any unusual I-9 issues, consult with experienced employment counsel to avoid creating liability, both as to onboarding as well as terminations.
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About The Authors
Greg L. Berk is a Partner in the law firm of Sheppard, Mullin, Richter & Hampton LLP in the firm’s Orange County office. He leads the Firm’s immigration practice and is a Certified Specialist in Immigration and Nationality Law by the State Bar of California Board of Legal Specialization>. He has over 25 years of experience advising on all aspects of U.S. immigration matters. He assists employers worldwide with the hiring and retention of foreign national executives and highly talented individuals that are needed in their U.S. workforce. He also works with investors on E-2, L-1, and EB-5 matters. He also handles I-9 and other immigration compliance matters.
Greg frequently lectures on immigration issues and is a regular contributor to the California Labor and Employment ALERT Newsletter and Sheppard Mullin’s Labor & Employment Law blog. Mr. Berk received his J.D. from Western State University College of Law, his M.B.A. from George Washington University and his B.A. from California State University.
Lisa M. Harris is a Partner in the Labor and Employment Practice Group with the law firm of Sheppard, Mullin, Richter & Hampton LLP in the firm’s Orange County and New York offices. Lisa’s practice focuses on Labor and Employment and Diversity, Equity and Inclusion counseling and compliance. Ms. Harris counsels and represents management in both employment and traditional labor matters. She regularly conducts and advises on high-level investigations and trains HR professionals on how to conduct such investigations internally. She also advises on diversity, equity and inclusion best practices. As a member of the firm’s ESG and Sustainability Industry Team, Ms. Harris supports clients in addressing the social aspects of ESG through development and promotion of a healthy and equitable workplace.
Lisa received her J.D. from St. John’s University, Dean’s List, and her B.A. from University of California, Berkeley.
Christine L. Doyle is Special Counsel in the Labor and Employment Practice Group with Sheppard, Mullin, Richter & Hampton LLP in the firm’s Orange County office. Christine has experience in a broad range of immigration law, with a focus on employment-based immigrant and nonimmigrant visa petitions. She has numerous years of experience counseling employers and their employees on U.S. immigration, global immigration, and I-9 compliance matters.
Christine is a regular contributor to the California Labor and Employment ALERT Newsletter and Sheppard Mullin’s Labor & Employment Law, French Desk Law, and Latin American Law blogs. She received her J.D. from Pepperdine University and her B.A. from Boston College. She also served as an extern at the Los Angeles Immigration Court and Department of Justice.
Andrew J. Desposito is Special Counsel in the Labor and Employment Practice Group with Sheppard, Mullin, Richter & Hampton LLP in the firm’s Orange County office. Andrew’s practice focuses on business immigration including I-9 compliance, EB1A, EB1B, National Interest Waivers, H1B, and E-2 and L1 matters.
Andrew frequently lectures on immigration issues and is a regular contributor to the California Labor and Employment ALERT Newsletter and Sheppard Mullin’s Labor & Employment Law, French Desk Law, and Latin American Law blogs. He received his J.D. from the California Western School of Law and his B.A. from the Loyola University of Chicago.