DHS Ends Form I-9 Requirement Flexibility: Important Updates for Employers

As of July 31, 2023, the temporary flexibilities for Form I-9, Employment Eligibility Verification, put in place during the COVID-19 pandemic, will come to an end. U.S. Immigration and Customs Enforcement (ICE) has recently announced that employers must complete in-person physical document inspections for employees whose documents were inspected remotely during the temporary flexibilities by August 30, 2023. This new announcement provides employers with additional time to complete the in-person physical inspection of identity and employment authorization documents and annotate Form I-9 accordingly.

The COVID-19 temporary flexibilities for Form I-9 were initially announced in March 2020 and updated in March 2021. These flexibilities allowed employers to remotely inspect and verify employees’ identity and employment authorization documents, given the challenges posed by the pandemic.

With the upcoming end of the flexibility period, employers must now return to the standard practice of conducting in-person physical inspections of the required documents for all employees. Failure to comply with this requirement could subject employers to civil money penalties and, in some cases, criminal penalties.

To aid employers in this transition, the Department of Homeland Security (DHS) will be publishing a Final Rule in the Federal Register to implement alternative procedures that allow remote document examination for Form I-9. This rule is anticipated to be released soon after the end of the temporary flexibility period.

Furthermore, a new version of the Employment Eligibility Verification Form I-9 will be introduced, which employers must start using beginning August 1, 2023. The new form (Rev. 08/01/23) contains several revisions and updates aimed at streamlining the form and reducing the burden for both employers and employees.

The form can be found here: uscis.gov

Notable changes in the updated Form I-9 include:
• Merged Fields: Multiple fields in Sections 1 and 2 have been merged into fewer fields, reducing the length of the form.
• Separate Supplements: Sections 1 and 3 (preparer/translator certification and reverification) have been moved to separate supplements to simplify the main form.
• Language Update: The term “alien authorized to work” in Section 1 has been replaced with “noncitizen authorized to work,”
• Distinction between “noncitizen national” and “noncitizen authorized to work” has been clarified.
• Mobile-Friendly: The updated form is designed to be filled out easily on tablets and mobile devices.
• Checkbox for Alternative Procedure: A checkbox has been added for employers to indicate if an alternative procedure authorized by DHS was used for document examination.

Employers will have until October 31, 2023, to continue using the previous version of Form I-9 (Rev. 10/21/19). Starting from November 1, 2023, employers must use the new version (Rev. 08/01/23) for all new hires to comply with their employment eligibility verification responsibilities.

It’s important to note that employers are not required to complete the new Form I-9 for existing employees who already have a properly completed Form I-9 on file unless reverification is necessary after October 31, 2023.

For further information or questions, employers can reach out to info@lever1.com.

As the DHS Final Rule on remote document examination is expected to be released soon, employers should keep an eye on updates and comply with any additional guidance provided.
Employers play a critical role in ensuring compliance with employment eligibility verification regulations, and staying up to date with the latest changes will help them avoid potential penalties and legal issues.