What Employers Should Know About the Updated Form I-9
The following article was provided by attorneys at Robinson+Cole LLP. It is posted here with permission.
Employers will soon be required to use a new, streamlined I-9 form for new employees.
The United States Citizenship and Immigration services released the updated I-9 form Aug. 1, setting a Oct. 31 deadline for employers to adopt the new form.
Employers have always been required to complete an in-person inspection of the new hire’s form I-9 documents.
The U.S. Department of Homeland Security made temporary allowances as a result of the pandemic and allowed some employees to have their documents remotely inspected.
While these allowances changed over time, ultimately ending in July 2023, the idea of virtual inspection of Form I-9 documents was appealing to many employers.
DHS officials took note. When DHS announced the end of temporary COVID-19 flexibilities in July 2021, officials also announced plans to allow some employers to remotely examine Form I-9 documentation.
DHS published the revised version of Form I-9, Employment Eligibility Verification Aug. 1, 2023.
The new Form I-9 streamlines the form, moving the preparer/translator certification and reverification/rehire sections to addendums.
The biggest change is the rollout of the alternative remote inspection option.
Under the new option, employers enrolled in E-Verify can now use the alternative option to remotely examine an employee’s Form I-9 documents through a live video interaction, such as a video conference.
Under the new process, an employer enrolled in E-Verify and in good standing may elect to conduct a remote inspection of the employee documents by completing the following steps:
- The employee must transmit a copy of the I-9 document(s) they wish to present for identity and work authorization (front and back, if the document is two-sided).
- The employer examines copies of form I–9 documents to ensure that the documentation presented reasonably appears to be genuine.
- The employer conducts a live video interaction (e.g., video conference) with the employee presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the employee. The documents must be the same documents previously sent by the employee.
- The employer then checks the box on the form I-9 labeled “Check here if you used an alternative procedure authorized by DHS to examine documents.”
- The employer retains a clear and legible copy of the documentation (front and back, if two-sided). In the event of a Form I–9 audit or investigation, the employer must provide the copies, along with the Form I-9.
This new alternative provides employers with more flexibility, given the increase in remote workers. However, it does require the employer to enroll/comply with E-Verify.
E-Verify is an internet-based verification system operated by DHS in partnership with the Social Security Administration. Employers use the system to electronically verify the employment eligibility of newly hired employees.
In addition to the new I-9 alternative/remote inspect option, E-Verify already had a number of incentives driving E-Verify enrollment, including mandates for specific programs.
E-Verify is mandated in some states/locations and for many federal contracts.
In addition, a student in F-1 status is only eligible for an extension of their Optional Practical Training for up to two additional years if they will be working for an E-Verify employer.
While there are a number of “carrots” incentivizing E-Verify enrollment, there are also some disadvantages.
In particular, the employer must be able to ensure that E-Verify will be timely and accurately completed for all new hires once the employer enrolls/signs the E-Verify Memorandum of Understanding.
It is critical for E-Verify employers’ onboarding process to include E-Verify so the employer is consistently compliant.
The employer must also train employees tasked with E-Verify completion to ensure all processes (including Tentative Non-Confirmation procedures) are completed correctly. This is especially important as the MOU allows SSA and DHS to conduct periodic audits, if the agency elects.
While the system has shown to have very low error rates, the system is not perfect.
It can lead to situations where an employee is authorized to work, but receives a tentative non-confirmation, and must then take action.
There are a number of questions regarding what requirements will be included in the NextGen E-Verify system that DHS is in the process of developing. Thus, the new Form I-9 may provide a remote verification option that is more consistent with today’s employment arrangements, especially for those employers with a growing remote workforce.
Still, to take advantage of this new process, the employer must enroll in E-Verify, which has its own administrative costs.
About the authors: Megan Naughton is co-chair of Robinson+Cole’s immigration group. She has more than two decades of experience successfully handling U.S. business immigration matters. Lauren Sigg is also a member of the firm’s immigration group. She practices in the area of U.S. immigration law, focusing on business immigration.
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