DHS Announces New I-9 Rule Providing Remote Inspection and a New Form I-9

On July 21, 2023, the Department of Homeland Security (DHS) announced a new I-9 rule which will allow employers enrolled in E-Verify and in good standing an alternative option to remotely prepare Form I-9s for new hires. This is a significant development as employers prepare for the August 30th deadline to complete in-person inspection of Form I-9s completed under the COVID-19 flexibilities. Along with the new rule, DHS announced it will issue a new Form I-9 on August 1, 2023.

New I-9 Rule Providing Remote Alternative to In Person I-9 Inspection

On July 31, 2023, DHS will end temporary COVID-19 flexibilities allowing employers to remotely inspect (rather than physically inspect) supporting documents for the I-9 process. Employers will have until August 30, 2023, to physically inspect I-9 documents that were presented to them remotely pursuant to the I-9 COVID-19 flexibilities from March 20, 2020, through July 31, 2023, unless they are eligible for an alternative remote option announced under a new rule which will be effective on August 1, 2023.

Under the new I-9 rule, employers that are registered as E-Verify users and in good standing will have an alternative option of completing the Form I-9 remotely. Qualifying employers may remotely inspect and complete Form I-9s pursuant to the following conditions:  

• Conduct a live video interaction with the individual presenting the document to ensure the document reasonably appears genuine and related to that individual;
• Examine front and back of I-9 supporting documents;
• Check the applicable box on the new Form I-9 that an alternative procedure was used to examine documentation for Section 2 or for Section 3 reverification (as appropriate);
• Retain as required a clear and legible copy of I-9 supporting documents (front and back if two-sided); and
• Present these electronic copies to the government in the event of a Form I-9 audit or investigation.

Qualifying employers who choose not to use this new alternative procedure, along with all other employers, must revert to physically inspecting I-9 supporting documentation on August 1, 2023.

Employers that currently participate in E-Verify and that created E-Verify cases for employees whose documents were inspected remotely during the COVID-19 flexibilities, qualify for the alternative procedure for remote I-9 completion and will also be exempt from having to conduct physical inspections of documents presented for Form I-9s completed between March 20, 2020, and July 31, 2023.

U.S. Citizenship and Immigration Services (USCIS) confirmed that employers who were not E-Verify users between March 20, 2020, and July 31, 2023, and do not meet the requirements listed above will still need to physically examine I-9 documents presented by their employees hired during the I-9 COVID-19 flexibilities period.

Please note that the option to use a third party as an employer representative still remains whether the employer opts for the current in-person requirements or the alternative remote E-Verify option available on August 1.

New Form I-9

Finally, in conjunction with the effective date of the new I-9 Rule, USCIS will publish a new Form I-9. Employers may use the prior version of Form I-9 (Edition 10/21/2019) through October 31, 2023. If an employer using the alternative remote inspection procedure continues to use the 2019 version of Form I-9 through October 31, 2023, the employer must indicate this by writing “Alternative Procedure” in the Additional Information field in Section 2 of the Form I-9. Employers must begin using the new Form I-9 (Edition 8/1/2023) no later than November 1, 2023.

For employers who use the new Form I-9, it will include a checkbox for employers enrolled in E-Verify to indicate that they are opting to use the alternative procedure to remotely examine the identity and employment authorization.

The new Form I-9 will be a one-page document which can be accessible via a tablet or mobile device. Other features on the new Form I-9 include:  

• Moving the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;
• Moving Section 3, Reverification and Rehire, to a standalone supplement that employers can print if or when rehire occurs or reverification is required;
• Revising 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; and
• Reducing the instructions from 15 pages to eight pages.

For additional information on best practices for immigration and I-9 compliance, please view our recent webinar and materials here.

Employers who would like additional information as to the new I-9 rule and the pros and cons of registering as an E-Verify user, please contact our attorneys on the I-9 & Immigration Compliance Team.