United States: Employers Must Switch To New Version Of Form I-9 By October 31, 2023

The U.S. Citizenship and Immigration Services (USCIS) recently announced that it will publish a revised Form I-9 (Employment Eligibility Verification), which is used by employers to verify an employee's identity and employment authorization.

Effective Date for Revised Form I-9

The new form will become available on August 1, 2023. Employers are encouraged to begin using the new version of the form at that time. Use of the new form becomes mandatory on November 1, 2023, and going forward from that date. Employers who do not use the new form beginning November 1 will be subject to penalties if they continue to use the old form.

Changes to Form I-9

Some of the changes employers can expect in the new form include:

• Reduces Sections 1 and 2 to a single-sided sheet.
• 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 that employers can print if or when rehire occurs or reverification is required.
• 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 Form instructions from 15 pages to 8 pages.
• Includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a Department of Homeland Security (DHS)-authorized alternative procedure rather than via physical examination (see below for more information).

E-Verify Requirement

In addition to the new Form I-9, DHS published a new rule permitting "alternative document examination procedures" via remote examination as an alternative to in-person, physical review by employers. As a threshold matter, to utilize the alternative process, employers must be enrolled in E-Verify, remain in good standing and in compliance with all requirements of the E-Verify program, and complete an E-Verify training as part of the E-Verify enrollment process.

In using the new procedure, employers will be required to examine and retain copies of all documents, conduct a live video interaction with the employee, and create an E-Verify case if the employee is a new hire. Employers who choose to use the new procedure must still be able to offer copies of any I-9 documentation to a federal government official in the event of an audit or investigation.

Next Steps for Employers

Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (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 not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by August 30, 2023.

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