Written by Nam Douglass, Esq., Senior Associate Attorney, N.C. Board Certified Immigration Law Specialist.
The Department of Homeland Security (DHS) released a new version of the Form I-9 in August 2023.
The update represents one of the most significant changes to the I-9 process since the form was first introduced more than 35 years ago.
The new edition of the Form I-9 is more condensed and creates a permanent process for eligible employers to virtually (rather than physically) inspect the acceptable identity and employment authorization documents.
Garfinkel Immigration Law Firm explores and analyzes the updated Form I-9 in the white paper below.
What is the Form I-9?
The employment eligibility verification requirement was established by the Immigration Reform and Control Act of 1986 (IRCA). The Form I-9 requires employers to review and record data from employee’s identity and employment authorization document(s) and assess whether those documents appear to be genuine and relate to the individual presenting them.
All U.S. employers must complete a Form I-9 Employment Eligibility Verification for each full- and-part time employee hired in the United States after November 6, 1986, without exception.
New edition of the Form I-9
As mentioned above, DHS announced its intention to update the Form I-9 in July 2023 and officially published the new version on August 1. The new update significantly altered the presentation and process for completing the Form I-9.
First, the form itself condensed “Section 1, Employee Information and Attestation” and “Section 2, Employer Review and Verification” from two separate pages into a single page. This change better delineates between the employee and employer sections of the form, simplifying both the completion and review process.
Further, the new version of the form moves “Supplement A, Preparer and/or Translator Certification for Section 1,” and “Supplement B, Reverification and Rehire” onto their own separate pages (pages 3 and 4, respectively). These two sections are only required if a preparer/translator assists the employee in completing Section 1 of the Form I-9, or if the “employee requires reverification, is rehired within three years of the date the original Form I-9 was completed or provides proof of a legal name change.”
Additionally, the list of acceptable documents is now found on Page 2 of the Form I-9. The list in the new version of the form more clearly defines which documents are acceptable in each category. The new list also expands the types of documents employees can present to their employer to prove their identity and employment authorization. More specifically, the list now includes receipt notices as an acceptable form of documentation, in most circumstances.
The new version of the form also further explains the difference between a “noncitizen national” and a “noncitizen authorized to work.” The updated Form I-9 can also be “filled out on tablets and mobile devices by downloading onto the device and opening in the free Adobe Acrobat Reader app.”
Along with the new edition of the Form I-9, DHS also authorized a permanent process for the virtual inspection of the identity and employment authorization documents.
Virtual inspection process
Previously, businesses were required to physically inspect the Form I-9 identity and employment authorization documents in person, with both a representative of the employer and the employee present.
During the height of the COVID-19 pandemic, however, DHS implemented temporary policies which allowed employers to inspect the documents remotely. DHS has made some of those policies permanent in the new version of the form.
For example, qualified employers can now view employee documentation virtually to complete the Form I-9. First, the employer must send the employee the Form I-9, including the list of acceptable documents. Next, the employer requests that the employee send them copies of any combination of the acceptable List A or List B and List C documents via electronic communications, which could include email, company chat and more, before their first official day of work.
After notifying the employee about the required documents, the employer must then schedule a live, remote meeting with the employee via a video platform. Employers may receive the copies of the documents at any point up until the time of the scheduled video inspection.
During the virtual meeting, the employer must ensure the copies of the document(s) the employee sent via electronic communication match the document(s) they present at the virtual meeting. For instance, the employer should confirm the picture on the employee’s passport matches their face on the screen during the live video meeting, if that was the document presented.
The employer then must complete their required Section 2 of the Form I-9 within three business days of the employee’s first day of work with the company.
Employers must indicate on the Form I-9 that the employee’s documents were virtually inspected, if applicable. Employers should check the box next to the sentence that reads “Check here if you used an alternative procedure authorized by DHS to examine documents” on Page 1, Section 2 of the Form I-9. Garfinkel Immigration Law Firm recommends employers note the date the employee sent their documents electronically and the date of the virtual inspection meeting in the “additional information” box in Page 1, Section 2.
There is still ongoing discussion as to whether the employer representative completing the virtual inspection must be physically present in the U.S. Given the current uncertainty, Garfinkel Immigration Law Firm recommends the employer representative completing the Form I-9 virtual inspection be located inside the United States.
More details about employer eligibility for the virtual inspection process follows below.
Virtual inspection process: Eligibility, tips and other important considerations
It is important to note that only “qualified employers” are eligible to participate in the Form I-9 virtual inspection process.
To date, the Department of Labor (DOL) and DHS have defined “qualified employers” as those who are enrolled in E-Verify, the free online system that allows for the electronic employment eligibility verification of newly hired employees.
Further, “qualified employers” must be in compliance and good standing with all the requirements of E-Verify, including using the system to verify all new employees. Employers who do not use E-Verify or are not in good standing are ineligible to onboard new employees using the virtual Form I-9 inspection process. Employers who use E-Verify should assume they are in good standing, unless they have been notified otherwise by the DHS.
Please note that while there is no federal mandate to participate in E-Verify, many states have laws that require employer participation. Garfinkel Immigration recommends employers confirm their applicable state’s regulations and compliance details or contact the Firm’s attorneys to receive further information.
“Qualified employers” who elect to use the virtual Form I-9 inspection process must develop a consistent policy that is implemented across the business and employees equally. Employers can, for example, develop a policy in which all employees have the option to have their documents inspected virtually or a policy in which only remote employees have their documents inspected virtually, while those working in the office must have their documents physically inspected. However, employers cannot arbitrarily inspect some employees via the virtual process and others in person. The new policy requires each company to adhere to its policy and execute it with consistency, and not in a discriminatory manner.
Garfinkel Immigration Law Firm notes that employees must be given the option to opt out of a virtual inspection regardless of the qualifying employer’s elected procedure, as the virtual verification process requires employees to send personal documents via email or other messaging system. An employee may not feel comfortable providing personal documents in that manner. Employees who opt out of the virtual process must have their required documents inspected in person.
As a reminder, employers cannot specify which documents employees should present as part of the verification process. Employees have sole decision-making authority regarding what documents to use. Employers must accept any List A document or combination of List B and List C documents that meet the requirements listed on Page 2 of the Form I-9.
If an employee presents an invalid or expired document, the employer still cannot prescribe or recommend an alternative document to the employee. The employer can only inform the employee that the document presented was unacceptable and advise them to revisit the list and return with documents that meet the requirements.
Employers who elect to use the alternative verification process are required to keep copies of the documents submitted by the employee via email or other electronic communication method in a secure I-9 file. Form I-9 documents should be kept separate from employee personnel files.
When are employers required to use the new edition of the Form I-9?
The new edition of the Form I-9 was released on August 1, 2023. Employers can use either the new version of the form or the previous edition until October 31, 2023. Thereafter, employers must complete the new Form I-9 (dated 08/01/2023). The edition date is listed on the bottom left-hand corner on all pages of the form.
Employers who do not use the new edition of the Form I-9 after Oct. 31 could be subject to fines and/or other penalties from U.S. Immigration and Customs Enforcement (ICE). Garfinkel Immigration Law Firm recommends employers begin completing the newest version of the Form I-9 as soon as possible.
The version of the Form I-9 dated 08/01/2023 can be found here.
Employers with questions about the new edition of the Form I-9 can contact the attorneys at Garfinkel Immigration Law Firm by phone at 704-442-8000 or via the website to receive additional information.
This white paper was last updated on Oct. 19, 2023.