On July 21, 2023, the U.S. Department of Homeland Security (“DHS”) announced an updated Form I-9 and remote I-9 verification procedure (referred to by DHS as “the Alternative Procedure”). Employers will be required to use the updated Form I-9 starting November 1, 2023. Separately, employers who were unable to review employees’ Form I-9 documents in person during the COVID-19 pandemic will be required to examine those documents in person, or through the Alternative Procedure, by August 30, 2023.

Updated Form I-9

On August 1, 2023, the DHS will publish a revised Form I-9. The revised Form I-9 will be released as a fillable PDF now compatible with most mobile devices and reduced to a single double-sided sheet complete with standalone supplements. Employers may continue using the current Form I-9 through October 31, 2023, but must begin using the new Form I-9 by November 1, 2023. 

The Alternative Procedure

Effective August 1, 2023, employers may use the Alternative Procedure, which allows employers to review Form I-9 documents remotely. To be eligible to use the Alternative Procedure employers must be enrolled in E-Verify and remain in good standing. The Alternative Procedure requires an employer to do the following in order to complete a review of Form I-9 documents remotely, rather than in person:

• Examine a photocopy of the employee’s Form I-9 documents to ensure that the documents appear genuine;
• Conduct a live video conference with the employee. The employee must display the original documents during the conference, and the employer must ensure that the documents are related to the individual;
• Note on the Form I-9 that the Alternative Procedure was used to examine the employee’s documentation; and
• Retain a clear and legible copy of the provided Form I-9 documents.

Like the typical in person review, the review under the Alternative Procedure must be completed within three business days of the employee’s date of hire.

Reviewing Documents of People Hired During COVID Flexibilities

The DHS also recently announced that the “COVID Flexibilities,” which allowed for remote verification of Form I-9 documentation starting on March 20, 2020, will end on July 31, 2023. DHS further announced that Employers have until August 30, 2023, to review Form I-9 documents for employees who previously received only remote verification during the COVID Flexibilities. Employers (or their authorized representatives) may physically examine the documents in person in the employee’s presence or examine them pursuant to the Alternative Procedure. However, only employers who, at the time they reviewed an employee’s Form I-9 documentation remotely during the COVID Flexibilities, were enrolled in E-Verify and had opened a case for that employee in E-Verify, may use the Alternative Procedure.

Key Takeaways

• Should you wish to perform remote verification of Form I-9 documentation in the future, you must enroll in, or remain in good standing with, E-Verify.
• You must review, by August 30, 2023, the Form I-9 documentation of each employee whose Form I-9 documentation was reviewed remotely during the period of COVID Flexibilities. Employers who had opened a case in E-Verify for the employee whose Form I-9 documentation was reviewed remotely may use the Alternative Procedure to verify remotely; all others (or their authorized representatives) must verify in person;
• You must begin using the new Form I-9 on or before November 1, 2023.

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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.