United States: Changes In The New Form I-9, Employment Eligibility Verification

On August 1, 2023, the U.S. Citizenship and Immigration Services (USCIS) released a revised version of the Form I-9, Employment Eligibility Verification, which may be used now but must be used for all new hires and rehires starting November 1, 2023. The new form is a major change from the last iteration in that it has returned to a one-page version, which had been used from 1986 until 2013. This one-page version, however, has two Supplements, A and B. Thus, the new Form I-9 is "one-page plus."

This update brings several improvements to the Form I-9, including a new checkbox for employers enrolled in E-Verify to indicate remote, virtual examination of identity and employment authorization documents. The following are the most notable changes:

1. One Page for Sections 1 and 2

The new Form I-9 reduces Sections 1 and 2 to one page. Although the USCIS asserts this simplification ensures a more efficient and user-friendly experience for employers, in actuality, it is expected to lead to a corresponding increase in confusion and mistakes. This is based upon the authors' 27 years of experience with the Form I-9 as one page and 10 years of experience with the two-page form.

2. Remote Examination Checkbox

One of the most notable additions to the revised Form I-9 is the inclusion of a checkbox that allows employers enrolled in E-Verify to indicate that they have examined the employee's identity and employment authorization documents remotely, if applicable. This checkbox signifies that employers have followed the alternative procedure authorized by the Department of Homeland Security (DHS) for remote document examination. As previously discussed, to participate in this alternative procedure, employers must fulfill these specific requirements: i) be enrolled in E-Verify and in good standing; ii) examine and retain copies (front and back) of all relevant identity and employment authorization documents after the employee scans and emails such to the employer representative; iii) conduct a live video interaction with the employee to verify the authenticity of the presented documents, front and back; and iv) create an E-Verify case for new hires to ensure compliance with the employment eligibility verification process.

3. Reverification and Rehire

Formerly known as Section 3, which deals with reverification and rehiring, this section has been moved to a separate page, entitled Supplement B. This modification allows employers to print the supplement when rehiring occurs or reverification is required, facilitating accurate record-keeping. A potential downside, however, is that employers may forget to use the supplement for reverification because it is not on the Form I-9.

4. Preparer/Translator Certification

The Preparer/Translator Certification area has been moved to a separate page, entitled Supplement A. The same potential downside is present with this Supplement—i.e., employees and employers may forget to use it because it is not on the Form I-9.

5. Change from "Alien" to "Noncitizen" in Section 1, Status 4

The USCIS is finally moving away from referring to individuals as aliens and instead is referring to them as "noncitizens." Additionally, under Status 4, the USCIS has made it clearer that the noncitizen needs to provide a USCIS number, Form I-4 Admission number, or Foreign Passport number and Country of Issuance.

6. Elimination of Response "N/A" in Section 1

The USCIS eliminated the need to write "N/A" in Section 1 fields unused, such as "Other Last Names Used" and "Apt. Number." Although no employer had ever received a penalty/fine for not recording "N/A," many employers worried about their failure to record "N/A."

7. Lists of Acceptable Documents

The Lists of Acceptable Documents page has been revised to include acceptable receipts in addition to physical documents. The updated Form I-9 also provides guidance and links to information on automatic extensions of employment authorization documentation, ensuring employers have access to the latest information. However, the Lists of Acceptable Documents still fail to include numerous documents that the USCIS had deemed acceptable in previous memoranda and policy directives.

8. Mobile-friendly Design

Recognizing the increasing use of mobile devices, the revised Form I-9 is designed to be fillable on tablets and mobile devices. This enhancement allows employers to complete the form electronically. However, the Form I-9 still needs to be signed by the employee and employer representative with "wet" signatures unless one is using an electronic Form I-9 system. This is in order to be compliant with the electronic I-9 regulations.

9. Streamlined Instructions

To enhance usability, the instructions for completing Form I-9 have been reduced from 15 pages to 8 pages. The streamlined instructions make it easier for employers to understand and comply with the requirements of the Form I-9 as well as make it likely that employers will actually read the instructions in full.

The revised Form I-9, with an edition date of 08/01/23, is available on the USCIS website (www.uscis.gov). Employers can continue using the previous edition of the Form I-9 dated 10/21/19 until October 31, 2023. As previously stated, starting November 1, 2023, all employers must use the new Form I-9 to comply with the employment eligibility verification process. To ensure compliance with the revised Form I-9 and alternative procedure, employers should familiarize themselves with the updated instructions and requirements.

Employers with questions concerning the new Form I-9 should contact their immigration attorney.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.