Employment Law Update:  NEW Form I-9 and Reverification of Documents

The Department of Homeland Security (DHS) released a new version of Form I-9 on August 1, 2023, that must be used beginning no later than October 31, 2023.  Additionally, employers who used remote verification of Form I-9 documents between March 20, 2020, and July 31, 2023, must physically reverify these documents in-person no later than August 30, 2023. 

Updated Form I-9

On August 1, 2023, DHS released a new version of Form I-9.  Employers should begin using this updated form as soon as possible, but no later than October 31, 2023.  Beginning October 31, 2023, employers who use older versions will be subject to penalties.

Changes to the Form I-9 include:

• Updating the ‟Lists of Acceptable Documents” to include acceptable receipts and information about automatic extensions of employment authorization documentation (specific information can be found in the Handbook for Employers);
• Adding a checkbox for eligible employers (defined below) to indicate that the documentation was verified remotely under the newly authorized procedures;
• Updating the form to be fillable on tablets and mobile devices;
• Condensing Sections 1 and 2 to a single page;
• Moving the ‟Preparer/ Translator Certification” and the former Section 3, ‟Reverification and Rehire,” to standalone supplements that can be used when necessary; and
• Reducing the instructions from fifteen to eight pages.

One of the biggest additions to the Form I-9 is a checkbox for eligible employers to indicate that employee documents were verified using the new alternative procedure for Form I-9.  On July 25, 2023, DHS released a final rule that authorized this new alternative procedure for eligible employers.  In order to be an eligible employer authorized to use this alternative procedure, the employer must be a participant in good standing in E-Verify and meet the following three requirements:

• The employer was enrolled in E-Verify for all hiring sites that use the alternative procedure;
• The employer must be in compliance with all E-Verify program requirements, including verifying the employment eligibility of newly hired employees; and
• The employer must continue to be a participant in good standing in E-Verify at any time the employer uses remote verification.

Eligible employers may use this alternative procedure starting August 1, 2023.  To use this alternative procedure for new hires, employers must enroll and participate in E-Verify, must remotely examine the employee’s I-9 documents via live video, and must annotate the Form I-9 to show that the alternative procedure was used.  If using the new Form I-9 (08/01/23 version), employers should annotate the Form I-9 by checking the appropriate checkbox, which states, ‟Check here if you used an alternative procedure authorized by DHS to examine documents.”  If using the expiring Form I-9 (valid through 10/31/23), employers should write “Alternative Procedure” in the ‟Additional Information” field.

Remote Verification and Reverification of Documents

From March 20, 2020, through July 31, 2023, DHS temporarily allowed employers to verify documents remotely for Form I-9 purposes.  With the expiration of the COVID-19 emergency declarations, employers are now required to complete in-person verification of documents for any new employees, and employers must reverify documentation for any employee whose documents were verified remotely during the period of temporary flexibility.  Once these documents have been reverified in-person, the employer should update the original Form I-9 by writing “documents physically examined” and the date of examination in the ‟Additional Information” field.  This reverification must be completed by all employers no later than August 30, 2023.

To use the new alternative procedure to complete this mandatory reverification, the eligible employer must have been a participant in E-Verify at the time that the I-9 was completed according to the temporary flexibility requirements.  Eligibility for using the alternative procedure for this mandatory reverification requires compliance both at the time of initial verification and at the time of reverification.  An employer who was not enrolled in E-Verify at the time that the Form I-9 was completed using the temporary remote verification may not use this alternative procedure to complete reverification.  In order to be eligible to use this alternative procedure for reverification, the employer must meet all of the following four requirements:

• The employer performed remote examination of an employee’s documents between March 20, 2020, and July 31, 2023;
• The employer was enrolled in E-Verify at the time they completed the Form I-9 for that employee during the period of temporary flexibility; 
• The employer created a case in E-Verify for that employee at the time of hire during the period of temporary flexibility; and 
• The employer must be currently enrolled in and continue to participate in E-Verify.

An employer who does not meet each of these requirements is not eligible to use the new alternative procedure for the purpose of this mandatory reverification.  Eligible employers who choose to use the alternative procedure for reverification must complete the process discussed above to complete the alternative procedure, noting the alternative procedures used in the Additional Information field on the employee’s original Form I-9.

If you have any questions related to this announcement or other employment law matters, contact Sarah Glaser, Chair of Lloyd Gosselink’s Employment Law Practice Group, at 512.322.5881 or sglaser@lglawfirm.com, or Jessica Maynard at 512.322.5807 or jmaynard@lglawfirm.com.  Prepared by Sarah Glaser, Chair of the Firm’s Employment Practice Group, Jessi Maynard, an Associate in the Firm’s Employment Practice Group, and Michelle White, a To-Be-Licensed Associate in the Firm’s Employment Practice Group.