DHS Introduces New Form I-9 Version and Alternative Procedure for I-9 Document Inspection

The Department of Homeland Security (“DHS”) recently published a final rule implementing significant updates to the Form I-9, Employment Eligibility Verification and related document inspection processes, which will become effective on August 1, 2023. Notably, the new version of the Form I-9 includes a check box for certain employers to indicate that they have inspected copies of an employee’s identity and employment authorization documents pursuant to a new alternative procedure.

Under the current regulations, all employers must conduct an in-person, physical inspection of an employee’s identity and employment authorization documents during the I-9 process.  Under the new alternative procedure, certain employers that are enrolled in E-Verify now have the option to inspect an employee’s identity and employment authorization documents virtually using the alternative procedure. To qualify for participation in the alternative procedure, an employer must be enrolled in E-Verify, be an E-Verify user in good standing, enroll every hiring site that uses the alternative procedure in E-Verify, consistently use the alternative procedure for all employees at enrolled hiring sites (with limited exceptions), and obtain and retain clear copies of the front and back of the employee’s identity and employment authorization documents presented as part of the I-9 process. After the employee transmits clear copies of their documents, qualifying employers must conduct a live video interaction with the employee during which the employee presents his or her documents, indicate on the Form I-9 that they used the alternative procedure, and create an E-Verify case.

Employers who previously relied on the temporary COVID-19 I-9 flexibilities that were in effect between March 20, 2020 to July 31, 2023 to conduct virtual inspections of employee identity and employment authorization documents and who now must conduct in-person, physical inspections of employee documents by August 30, 2023 may choose to implement the new alternative procedure beginning on August 1, 2023, so long as the employer was enrolled in E-Verify at the time they conducted the virtual inspection. If an employer was not enrolled in E-Verify at the time it performed the virtual inspection, it must conduct an in-person, physical examination by August 30, 2023.

In addition to permitting the alternative procedure, described above, the revised Form I-9 also contains other changes to make the I-9 process more streamlined and efficient for employers.  Notably, Sections 1 and 2 of the revised Form I-9 will be a one-page, single-sided form and the instructions will no longer require employees or employers to input N/A in not applicable fields. The accompanying List of Acceptable Documents (“LOAD”) was also updated to include certain receipts and guidance for employers regarding acceptable alternatives not expressly listed in the LOAD. Employers may begin using the new Form I-9 on August 1, 2023.  All employers will be required to use the Form I-9 on November 1, 2023, regardless of whether they use the alternative procedure.