Legislation

USCIS Announces New Form I-9 and Alternative Verification Procedure

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The new I-9 can be used starting August 1, 2023 and must be used starting November 1, 2023.

U.S. Citizenship and Immigration Services (USCIS) announced a new version of Form I-9 (I-9) to verify the identity and employment authorization of employees and a new alternative procedure to the in-person physical document examination method that employers have followed as part of the I-9 process. The new I-9 can be used starting August 1, 2023 and must be used starting November 1, 2023. The alternative procedure may be used starting on August 1, 2023 and does not expire but can be cancelled or amended by the Department of Homeland Security. The alternative procedure is only available to employers enrolled in E-Verify.

Starting on August 1, 2023, employers may download the new I-9 (Rev. 08/01/23) from the USCIS website.

New I-9

The revised I-9:

  • Reduces Sections 1 and 2 to a single-sided sheet;
  • Is designed to be a fillable form on tablets and mobile devices;
  • Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;
  • Moves Section 3, Reverification and Rehire, to a standalone supplement for use in a rehire or reverification situation.
  • 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;
  • Reduces I-9 instructions from 15 pages to 8 pages; and
  • Includes a checkbox allowing employers to indicate they examined I-9 documentation remotely under an authorized alternative procedure rather than via physical examination.

The Alternative Procedure

Employers Qualified to Use the Alternative Procedure

At this time, employers who are participants in good standing in E-Verify are qualified to use the alternative procedure. According to USCIS, a participant in good standing in E-Verify in this context refers to an employer that has enrolled in E-Verify with respect to all hiring sites in the United States that use the alternative procedure; is in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and continues to be enrolled and a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure. Once enrolled in E-Verify, employers will be required to create a case for all newly hired employees, whether or not the alternative procedure is used, at each hiring site that is enrolled in E-Verify.

Non-Discrimination

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. However, 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 their citizenship, immigration status, or national origin.

Process Steps

In addition to the requirement that employers use E-Verify, the alternative procedure 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 front and back (if the document is two-sided) copy of the identity and employment authorization documentation to ensure that the documentation presented reasonably appears to be genuine;
  3. The employer must then 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 must Indicate on the new I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable;

    Note that as indicated above, the new version of the I-9 may be used on August 1, 2023. Employers may continue to use the 10/21/2019 edition of the I-9 from August 1, 2023 until the end of October 31, 2023. If during this grace period an employer uses the 10/21/2019 edition of the I-9 for the alternative procedure, the employer must indicate its use of the alternative procedure by writing "alternative procedure" in the Additional Information field in Section 2.
  5. The employer must retain a clear and legible copy of all documents (front and back if the documentation is two-sided) presented by the employee.
  6. In the event of an I-9 audit or investigation by a relevant federal government official, the employer must make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.

If the employee does not want the employer to apply the alternative procedure with respect to that employee, can qualified employers refuse to perform physical document examination?

No. Qualified employers must allow employees who are unable or unwilling to submit documentation using the alternative procedure to submit documentation for physical examination.

Can qualified employers that were enrolled in E-Verify during the COVID-19 temporary flexibility policy, use this alternative procedure to satisfy the requirement to physically examine I-9 documentation by August 30, 2023 that had been previously examined remotely under the COVID-19 flexibility policy?

Yes, if certain conditions are met. Employers who were participating in E-Verify and created cases for employees whose documents were examined virtually during the COVID-19 flexibility policy period (March 20, 2020, to July 31, 2023) may choose to use the new alternative procedure starting on August 1, 2023, to satisfy the physical document examination requirement by August 30, 2023. Employers should not create a new case in E-Verify. This accommodation is available to employers who were participating in E-Verify during the COVID-19 pandemic. Employers who were not enrolled in E-Verify during the COVID-19 flexibility policy must complete an in-person physical examination by August 30, 2023. In short, the regulations effectively require qualified employers choosing to utilize the alternative procedure in lieu of physical document examination to again perform a virtual / remote examination by August 30, 2023.

We anticipate that USCIS will be issuing additional guidance in the near future.

Next Steps

  • Start using the new I-9 no later than November 1, 2023
  • If you intend to implement the alternative procedure going forward, ensure you have enrolled in E-Verify and that managers tasked with reviewing I-9 documentation and completing the I-9 are familiar with the alternative procedures including the non-discrimination provisions.
  • Be on the lookout for additional guidance from USCIS related to the use of the alternative procedure.

ADP Compliance Resources

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Updated on July 25, 2023