In 1986, Congress passed the Immigration Reform and Control Act (IRCA). IRCA forbids employers from knowingly hiring individuals who do not have U.S. work authorization. To ensure that employers hire individuals with authorization to work in the U.S., IRCA introduced the Employment Eligibility Verification form, known as the Form I-9. IRCA requires all U.S. employers – no matter their size – to use the Form I-9 to verify the employment eligibility of all employees and to maintain and update the Form I-9 and associated records strictly, thoroughly and in a timely manner.
On August 1, 2023, USCIS published a revised version of Form I-9, with several significant changes in both form and substance. One of the most significant changes will allow employers who are enrolled in E-Verify to remotely examine identity and employment authorization documents. This modifies the protocol that has been in place since the program’s inception, which required employers to inspect and verify physical documents in person.
This change in procedure has its origins in the Covid-19 pandemic. In response to government-mandated quarantines and corporate “work-from-home” policies, ICE implemented a “Flexibility Policy” for employers who had employees working from home or other remote or virtual worksites. As to those employers, the Flexibility Policy authorized employers to inspect employment eligibility verification documents remotely via e-mail, Zoom, video link, or fax and to then obtain hard copies of the documents by mail within three business days of the commencement of employment.
Despite the announced end of the temporary Covid-19 “flexibility” policy, the government has recognized the new realities of the remote workplace and decided to retain remote inspection of employment verification documents for the I-9. Going forward, employers who are enrolled in E-Verify will have the option to remotely examine their employees’ identity and employment authorization documents under a DHS-authorized alternative procedure.
The government continues to push for “voluntary” use of its E-Verify system. Therefore, to participate in the remote examination of Form I-9 documents under the new procedure, employers must be enrolled in E-Verify, 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.
In addition to the change in process relating to the inspection of documents, there have been substantial revisions to the Form I-9 itself. In particular:
- Sections 1 and 2 are now reduced to a single-sided sheet;
- The Form will be fillable on tablets and mobile devices;
- The Preparer/Translator Certification Is shifted to a separate supplement that employers can provide to employees when necessary;
- Section 3, Reverification and Rehire, is shifted to a standalone supplement that employers can print if or when rehire occurs or reverification is required;
- The Lists of Acceptable Documents page is modified to include some receipts for pending applications and automatic extensions of employment authorization;
- The instructions are reduced from 15 pages to 8 pages; and
- The Form now includes a checkbox for employers to indicate they examined Form I-9 documentation remotely under the alternative procedure rather than in-person.
Starting Nov. 1, 2023, all employers must use the new Form I-9. To view the updated Form I-9: click here. For more information about E-Verify, click here. To discuss the Form i-9 and its changes, contact us.