Client Alert: USCIS Announces New I-9 Form And Changes To Verification Procedures For Eligible Employers
Date: July 24, 2023
The new Form I-9 contains two sections and two supplements: Section 1 of the form collects, at the time of hire, identifying information about the employee (and preparer or translator if used), and requires the employee to attest to whether the employee is a U.S. citizen, noncitizen national, lawful permanent resident, or noncitizen authorized to work in the United States.
Section 2 of the form collects, within three days of the employee’s hire, identifying information about the employer and information regarding the employee’s identity and employment authorization documents. The employee must present original documentation evidencing the employee’s identity and employment authorization, which the employer must review.
Supplement A, contains the Preparer and/or Translator Certification for Section 1. Supplement B, is for reverification and rehire, that was formerly included as Section 3 on prior versions of the I-9 form.
In addition, DHS has included a checkbox on the new form relating to an earlier proposal to create an optional alternative to the regulatory in-person physical document examination requirement that was suspended during COVID-19 and has since expired.
Also on July 21, 2023, DHS released a copy of a final rule authorizing an option alternative procedure to this in-person physical examination requirement. This new final rule will be officially published on July 25, 2023. Key points in the alternative procedure are that employers must be E-Verify participants and complete an E-Verify tutorial, as well as meet additional document retention and security requirements. Those employers who are eligible will not be required to physically inspect documentation provided by employees hired under the COVID-19 flexibilities. Eligible employers who use this optional authentication process must check the box, noted above, now included on the new I-9 Form. While this development is a positive sign for future I-9 verification procedures given the prevalence of remote work, for the time being, application of the rule will be limited.
Employers are strongly encouraged to monitor their I-9 verification programs to ensure compliance, to include a regular procedure to audit these practices. Penalties for violations of IRCA can be steep, and having an effective compliance plan in place is the most important step that employers can take to mitigate potential fines and penalties.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.