1. Overview Of The Challenges

In 1986, Congress put the burden on employers to confirm an employee’s authorization to work in the United States. The I-9 rules are tricky and it is not always clear when someone satisfies the authorization standards. Indeed, the I-9 Handbook is 130 pages long notwithstanding that it only purports to provide assistance in understanding a four-page form. In addition, the U.S. Department of Justice Immigrant and Employee Rights Division is aggressive about holding employers strictly liable for innocent mistakes. Employers are encouraged to reach out to counsel whenever an unusual situation arises.

2. New I-9 Form Was Released In August 2023

On August 1, 2023, the Department of Homeland Security (“DHS”) released a new Form I-9. It became mandatory on November 1, 2023.

3. Quick I-9 Tips

Paper I-9s: These still require a wet signature from the employee and employer, and retention of the original paper I-9.

Digital I-9s: These are acceptable as long as the software complies with ICE protocols regarding the creation of a digital audit trail.

New Remote Hires: E-Verify employers may use the new video procedure. Employers that are not on E-Verify must use a remote authorized signatory to complete Section 2 of the I-9.

Remote Verification: E-Verify employers can check off a box in Section 2 or on the Reverification Supplement B to indicate they used a video session for remote verification of I-9 identity and work authorization documents.

Supplement A: This is used when the employee is assisted with preparing Section 1 and/or needs translation.

Supplement B: This is used for reverification and rehires.

Non Citizen: USCIS replaced the term “alien” with non-citizen.

4. Wet Signatures Are Still Required Unless Using Digital Software

Unless an employer is using a digital I-9 software that is ICE compliant, employers must obtain a wet signature for all employee and employer sections of the paper I-9. Enrolling in E-Verify will not waive the wet signature requirement for a paper I-9.

5. Checklist For E-Verify Employers Seeking Remote Verification Of New Hires

Employers enrolled in E-Verify are now allowed to follow a new flexible procedure for remote verification of I-9 identity and work authorization documents for new hires.

Step 1: The employer sends the new hire access to the digital I-9 from their system. If the employer is still using paper I-9s, then they e-mail a blank I-9 to the remote employee to complete Section 1.

Step 2: The new hire or employee copies or photographs their I-9 identity and work authorization documents (front and back) and e-mails them to the employer (or texts or uploads them).

Step 3: The employee or new hire reviews and signs Section 1 of the I-9. If the I-9 is on paper, then it requires a wet signature, and the employee will need to overnight courier it back to the employer. Or, the employer can overnight courier the I-9 to the employee and include a self-addressed overnight courier envelope.

Step 4: The employer conducts a live video interaction (i.e., Zoom, Teams, Google Meet, FaceTime, etc.) with the employee or new hire to ensure that the documentation relates to them. During the video session, the employee or new hire must present the same documents previously submitted to the employer. The employer examines the copies of the documents to ensure the documents appear to be genuine.

Step 5: The employer marks the alternative procedure box of Section 2 of the new I-9 form.

Step 6: Employer completes Section 2 of the I-9 and 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.)

6. Avoiding Liability For Discrimination With I-9s And 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 cannot verify the information in Section 1 by requesting additional documents (e.g., you cannot request the Social Security card to confirm the Social Security number).

7. DOJ Enforcement Actions – Immigrant & Employee Rights (IER) Unit

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. The Department of Justice 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.

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About The Author

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.