The Form I-9 is required to be completed by all employers for all employees hired after November 6, 1986. As part of the compromise in President Ronald Reagan’s amnesty program in the 1980’s, the I-9 is used to verify an employee’s identity and authorization to work. The various versions of the I-9 expire every few years, and every new version usually includes a few changes. This new version is no different.
New I-9
The new version of the I-9 became available August 1, 2023, and employers can use the previous version of the I-9 until October 31, 2023. This means employers must use the new version beginning no later than November 1, 2023. Replacing old forms with the new form is especially important for employers who retain paper copies of the I-9 and may have copies of older forms in paper or electronic folders or in compiled new-hire packets. Employers using a third-party electronic I-9 system to create and retain their I-9s should check-in with their provider regarding the new I-9. While reputable providers are usually very proactive and will likely have the new version of the I-9 implemented in advance of the deadline, the ultimate responsibility falls on the employer.
In addition to returning to a one-page format and moving Section 3 entries, used for rehires, name changes, and reverifications, to a separate supplemental form, the biggest change is the ability to remotely examine Section 2 and Section 3 documents.
Remote Examination
Under the rules of the new I-9, employers are allowed to remotely examine I-9 documents if they participate in E-Verify and are in good standing with E-Verify. Good standing means that an employer is (1) enrolled in E-Verify for all work sites using the alternative remote examination procedure, (2) uses E-Verify to confirm the employment eligibility of new employees, and (3) complies with all other requirements of the E-Verify program. An employer must “remotely examine” documents for all employees at same work site however may choose to remotely examine documents for remote hires only and not employees who work onsite or in a hybrid capacity.
USCIS has made it clear that employers cannot adopt document examine policy for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin, such as by deciding that certain employees are not eligible for remote examination of their documentation.
In order to properly examine documents remotely, employers must:
• Examine copies of the Form I-9 documents or an acceptable replacement receipt, reviewing the front as well as the back if the document is two-sided, ensuring that the documentation presented appears genuine and reasonably relates to the employee presenting them.
• Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation presented appears genuine and reasonably relates to the employee presenting them. Employees must present the same document(s) during the live video interaction.
• Retain a clear and legible copy of the documentation, front side as well as back if the documentation is two-sided. Copies can be in a paper or electronic format, or in an acceptable combination, and must be kept while the employee is employed, and thereafter, until the I-9 can be purged, either (a) 3 years after hire date if the employee worked for the employer for less than two years, or (b) 1 year after termination if the employee worked for the employer for more than two years. Employers will be required to make copies of the retained documentation the employee presented available during a Form I-9 audit by a federal government inspector.
Additionally, the individual completing Section 2 must indicate that the remote examination Alternative Procedure was utilized by checking the box in the Additional Information field in Section 2 below the List B and List C fields. For a reverification, there are similar check boxes in the new Section 3 on Supplement B.
I-9 Reminders
While the following information is not new and certainly not exhaustive, it is important to remember the following and include such information in training that is conducted with individuals who fill out Section 2 on the employer’s behalf, such as line managers or human resources.
• Section 1 is filled out by the employee and must be completed no later than the hire date. The employee’s SSN is optional (unless using E-Verify, then required) as well as the employee’s e-mail address and phone number.
• Section 2 is completed by the employer no later than three days from the hire date using the documents provided by the employee proving identity and authorization to work.
• Employers cannot mandate that employees provide specific documents for the I-9, such as stating employees must bring a state ID and Social Security Card. Give employees the “Lists of Acceptable Documents” upon hire, so they know what is required of them prior to beginning employment.
• Employees must generally provide original, unexpired documents. However, certain expired USCIS documents are granted auto-extensions that extend the expiration date of a document even though the expiration date on the face of the document has expired.
• Employees may only provide a receipt for a lost, stolen, or damaged document. The replacement receipt exception does not apply for new or renewed documents.
• All original Form I-9s and copies of documentation that have been retained must be kept for the entire duration of employment and thereafter until the I-9s and documentation can be purged either (a) 3 years after hire date if the employee worked for the employer for less than two years, or (b) 1 year after termination if the employee worked for the employer for more than two years. Purging documents removes potential liability associated with incorrectly completed I-9s.
• Discrimination in the Form I-9 process is prohibited and employers must not discriminate against employees or job applicants based on their national origin, citizenship status, or immigration status.
• Everyone who completes I-9s on behalf of the employer should be trained regularly because failure to properly complete and maintain I-9s can result in significant fines and penalties.
• Audits of all I-9s should be conducted every 1-3 years.
Past Remote Examination
During the recent pandemic, employers were allowed to remotely examine documents for the I-9 and E-Verify. In May of 2023, ICE announced that employers had until August 30, 2023, to physically inspect all documents that had been examined remotely using the COVID-19 flexibilities.
New E-Verify Coming
E-Verify will be updated and the new version, “E-Verify NextGen” will be available in 2024. The updated system integrates the Form I-9 and E-Verify into one system in the hope of reducing typos and data entry errors and streamlining the application process. While many questions remain, employers will have the option to use the old or new system when it is initially rolled out.
The attorneys at Airdo Werwas, LLC are available to consult with you on any matter involving Form I-9 or E-Verify. If you have any questions or concerns about any issue involving Form I-9 or E-Verify, or any other employment law matter, please do not hesitate to contact the lawyer you regularly work with or contact James C. Jansen at jjansen@airdowerwas.com.