On August 1, 2023, the Department of Homeland Security (“DHS”) released a new Form I-9. The previous one was issued in 2019 and expires on October 31, 2023.
In addition, DHS recently announced enhanced remote verification flexibility using video for E-Verify employers, both for clean-up of I-9s created during the pandemic and going forward.
While the Government is well intended, the new I-9 and the remote verification process are still fraught with confusion and challenges for employers across the U.S. Below is some clarity for busy employers to help them remain in compliance.
Quick Road Map Going Forward
- New Form I-9: The new I-9 must be used no later than November 1, 2023.
- Pandemic Clean-Up: I-9s for remote employees created during the pandemic must be remediated by August 30. Employers on E-Verify may use the new video procedure.
- 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: Going forward, when hiring remote employees, 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.
Key Changes With the New I-9
- Starting Nov. 1, 2023, employers must use the new Form I-9
- Employers may use the October 2019 I-9 edition through Oct. 31, 2023
- 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
- Sections 1 and 2 are now on one page
- Dedicated Supplement A for the Preparer/Translator Certification
- Dedicated Supplement B for Reverification and Rehires
- Replaces the term “alien” with non-citizen
- Additional Acceptable Documents List has been updated and includes guidance for automatic extensions
The August Clean-up and Beyond
- Remote Hires during the Pandemic: For remote hires made during the pandemic (March 20, 2020 to July 31, 2023) where you used the remote pandemic flexibility and did not physically inspect the original identity and work authorization documents, you have until August 30 to look at those.
- Video Clean-Up Flexibility for E-Verify Employers: If you had E-Verify in place when the employee was hired remotely during the pandemic, you may do a video review of those documents starting August 1. In the additional information box in Section 2 of the employee’s I-9 created at the time of hire, you will want to indicate “Alternative procedure to verify documents completed via video call on x date.” Even if you did a video review during the pandemic, you should do another one as DHS has not indicated otherwise.
- Remote Authorized Representative: If E-Verify was not in place, then you need to have a remote authorized individual (notary, neighbor, co-worker, etc.) look at those original identity and work authorization documents and notate in the Additional Information Box of Page 2 of the I-9 that was created at the time of hire. The notation should indicate “Identity and Work Authorization Documents examined in person.”
- New Hires Working in the Office Starting August 1: After an offer is made, employers are of course always able to do an in-person review of identity and work authorization documents on or before the first day of hire.
- Remote Employees Hired as of August 1: E-Verify employers will be able to use the new video procedure and complete Section 2 of the new I-9. The new I-9 has a box to indicate that the alternative procedure was followed. Employers not enrolled in E-Verify will need to authorize a remote representative to review the documents and sign the I-9.
Wet Signatures Are Still Required Unless Using Digital Software
Unless you are using a digital I-9 software that is ICE compliant, then you must obtain a wet signature for all employee and employer sections of the I-9. Enrolling in E-Verify will not waive the wet signature requirement.
- Employers can easily enroll in E-Verify. To do so, employers must sign a mandatory Memorandum of Understanding and complete an anti-discrimination training.
- Employers enrolling in E-Verify may elect which entities to enroll in E-Verify.
- Each entity that has a distinct Federal EIN is a separate entity for E-Verify purposes.
- You may elect to enroll some worksites and not others within an entity.
- E-Verify is only for new hires unless they are working under a covered federal contract.
- E-Verify employers were previously required to only copy and retain List A Documents.
- E-Verify employers using the new alternative video procedure must copy and retain all identity and work authorization documents (List A, B, and C).
- To avoid confusion, it is recommended that E-Verify employers begin to copy and retain all I-9 documents (List A, B, and C) regardless of whether the procedure is remote or in person.
Checklist for E-Verify Employers Seeking Remote Verification of New Hires
Starting August 1, 2023, employers enrolled in E-Verify will be 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 e-mails a blank I-9 to the remote employee to complete Section 1.
- Step 2: The employee or new hire copies or photographs their I-9 identity and work authorization documents (front and back) and e-mails them to the employer (or via another form of transmission).
- 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. (Employers are highly encouraged to use ICE compliant digital I-9 software in lieu of paper I-9s).
- Step 4: The employer conducts a live video interaction with the employee or new hire to ensure that the documentation reasonably 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 reasonably appear to be genuine.
- Step 5: The employer marks the alternative procedure box of Section 2 of the new I-9 form for new employees hired on or after August 1, 2023.
- 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.)
- Regarding identity and work authorization documents that may have since expired, as long as the document was valid at the time of hire, it is okay if it’s expired now. You are merely attempting to verify that the document is real and matches what you saw at the time of hire.
- If the employee has lost one of the documents since the time of hire, then you would want to use Section 3 and try to reverify them using new documents. And in the additional information box in Section 2, you could explain what is going on.
- In the event an employee cannot produce the same or new work authorization documents, you will want to give them ample time to comply. If they lost the document and do not have an alternative one, then they can apply for a new one and use the receipt for 90 days.
- Regardless, do not terminate anyone without first discussing it with counsel.
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 documentation (e.g., you cannot request the Social Security card to confirm the Social Security number).
- 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.
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. 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.
Focus on Prevention – Consult With Counsel
When you encounter any unusual I-9 issues, consult with Sheppard Mullin’s robust employment and immigration team to avoid creating liability, both as to onboarding as well as terminations.