Client Alert

USCIS Announces Permanent Option for Remote Inspection for E-Verify Users and New Form I-9

Permanent Remote Review

On July 25, 2023, the Department of Homeland Security (“DHS”) published a final rule that will provide eligible employers filling out the Employment Eligibility Verification Form I-9 an optional alternative to the in-person physical document examination method that employers have followed as part of the Form I-9 process. The alternative procedure is available only to qualified employers, meaning those employers who are enrolled, and participate in good standing, in E-Verify.

A qualified employer does not need to use the alternative procedure, but if a qualified employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site, without discrimination. A qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic.

In addition to the requirement that employers use E-Verify, the optional alternative verification process requires the following to occur within three business days of the first day of employment:

1. The employee must transmit a front and back (if the document is two-sided) copy of the identity and employment authorization documentation to the employer;
2. The employer must examine the copies of the Form I-9 documentation or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
3. The employer then must conduct a live video interaction with the individual who must present the same documentation to ensure that the documentation reasonably appears to be genuine and related to the individual;
4. The employer will then indicate on the Form I-9, by completing the corresponding box (that will be on the updated Form I-9), that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable; and
5. The employer must retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back, if the documentation is two-sided).

New Form I-9

Further, the DHS’s Citizenship and Immigration Services has announced a new version of the Form I-9, Employment Eligibility Form that introduces changes that will be consistent with DHS final rule.

The new version of Form I-9 [with a version date of “(Rev. 08/01/23)”] will be available for use on August 1, 2023 on the USCIS website and can be found here:
https://www.uscis.gov/sites/default/files/document/forms/i-9.pdf

Employers may use the current version of Form I-9 (Rev. 10/21/19) through October 31, 2023.   Beginning November 1, 2023, employers who fail to use the updated Form I-9 (Rev. 08/01/23) may be subject to all applicable penalties.

Changes to the new Form I-9 and form instructions include the following:

1. Section 1 of the form continues to collect identifying information about the new hire and requires the employee to attest whether they are a U.S. citizen, noncitizen national, lawful permanent resident, or noncitizen authorized to work in the United States.
2. Section 2 of the form continues to collect identifying information about the employer and information regarding the employee’s identity and employment authorization.
3. Supplement A, Preparer and/or Translator Certification for Section 1 (formerly at the bottom of Section 1), is completed when employees have preparers and/or translators assist them in completing Section 1 of Form I-9.
4. Supplement B, Reverification and Rehire (formerly Section 3), is primarily used to verify the continued employment authorization of the employee and for other changes.
5. Reduces Sections 1 and 2 to a single-sided sheet.
6. Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement (Supplement A).
7. Moves the Section 3 Reverification and Rehire area to a separate, standalone supplement (Supplement B) for use in a rehire or reverification situation.
8. Removes use of “alien authorized to work” in Section 1 and replaced it with “noncitizen authorized to work.” USCIS has also clarified the difference between “noncitizen national” and “noncitizen authorized to work.”
9. Ensures the form can be filled out on tablets and mobile devices and be downloaded easily.
10. Updates the notice at the top of the Form I-9 that explains how to avoid discrimination in the Form I-9 process.
11. Revises the Lists of Acceptable Documents page to include some acceptable receipts, as well as guidance and links to information on automatic extensions of employment authorization documentation.
12. Adds a box that eligible employers must check if the employee’s Form I-9 documentation was examined under a DHS-authorized alternative procedure rather than by physical examination.

Should you have any questions regarding the new requirements and form, please contact Ali Law Group.

HRtelligence (www.HRtelligence.com), a dynamic labor and employment content provider, provides actionable information and real-world strategies including employment trends, insights, practical guidance and strategies, created and curated by practicing attorneys on a wide range of topics, from Discrimination/EEO to Wage & Hour.