On July 25, 2023, DHS announced an alternative procedure for Form I-9 allowing “qualified employers” to choose an alternative procedure (i.e. a virtual document inspection via video call) in lieu of physically examining Form I-9 documentation that had been examined remotely under the COVID-19 flexibilities. We wrote about these significant changes on July 28, 2023.
Qualified employers do not have to comply with the August 30th deadline to complete in-person physical inspections. However, note that this new option does not eliminate the requirement to conduct a second document review by August 30, 2023.
Which employers qualify to use the alternative procedure to update Forms I-9 completed under the temporary COVID I-9 policies?
At this time, the alternative procedure is only available to qualified employers. Qualified employers are defined as those who:
- Are enrolled in E-Verify in good standing;
- Were enrolled in E-Verify at the time that they performed a remote examination of an employee’s Form I-9 documentation (for Section 2 or for reverification) under the COVID-19 flexibilities;
- Created an E-Verify case for that employee (unless the documentation was reviewed solely for reverification); and
- Performed the remote inspection between March 20, 2020, and July 31, 2023.
An employer meeting all of these requirements is eligible to conduct its post-COVID I-9 update using the virtual review process outlined below.
What is the required alternative procedure?
A qualified employer (or an authorized representative acting on the employer’s behalf, such as a third-party vendor) must:
- Obtain and retain copies (front and back, if the document is two-sided) of the Form I-9 documentation being presented by the employee for Form I-9 purposes;
- After the employee transmits a clear copy of the documentation, the employer must conduct a live video interaction with the employee in which the employee displays the documentation; and
- Annotate the Form I-9 to indicate that the required update to the I-9 was conducted under the alternative procedure. This can be done by adding “Alternative Procedure” and the date of the live video interaction to the “Additional Information” field in Section 2 of the Form I-9 (or to Section 3 for reverification, as applicable).
The document copies must be retained with the Form I-9 and presented to DHS in the event of an I-9 inspection.
How should employers annotate the Form I-9 to reflect virtual review under the alternative procedure?
Employers should add the phrase, ‘‘alternative procedure’’, with the date of examination (i.e., the date the employer performed a live video interaction as required under the alternative procedure), initial it in the Section 2 “Additional Information” field on the Form I-9 or in Section 3, as appropriate. The following is an example from DHS:
New Version of Form I-9 Released on August 1, 2023
On August 1, 2023, USCIS released the new version of Form I-9. The version date of “(Rev. 08/01/23)” is located on the bottom left corner of the new form. Employers may continue using the prior version of the Form I-9 (Rev. 10/21/19) through October 31, 2023. After October 31, 2023, the prior version of Form I-9 will be obsolete and no longer valid for use. Beginning November 1, 2023, employers who fail to use the new version of Form I-9 (Rev.08/01/23) may be subject to penalties.
The newly updated Form I-9 includes some of the following changes:
- Reduced Sections 1 and 2 to one page
- Moved the Section 3 Reverification and Rehire section to a separate, stand-alone supplement (Supplement B) that employers can print if or when required.
- Ensured the form can be filled out on tablets and mobile devices.
- Revised the List of Acceptable Documents to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation.
- Added a box that eligible employers must check if the employee’s Form I-9 documentation was examined under a DHS authorized alternative procedure rather than via physical inspection.
As a reminder, employers do not need to complete the new Form I-9 for current employees who already have a completed Form I-9 on file, unless reverification occurs after October 31, 2023. For reverifications occurring after October 31, 2023, employers should use the new Form I-9 Supplement B and attach it to the prior Form I-9.
Loke Walsh Immigration Law will continue to keep you posted with any updates!
Please reach out to the LWIL team if you have any questions.
