Big changes coming to Form I-9: What HR needs to know

The U.S. Department of Homeland Security’s Citizenship and Immigration Services (USCIS) has announced new changes to form I-9, just days before COVID-19 verification flexibilities are set to end.

The new changes include an updated form and a proposed framework for alternative document examination. Here’s what HR pros need to know about the new Form I-9 changes.

New Form I-9: What changed?

On July 21, the USCIS issued a notice regarding a new Form I-9, with changes to the form itself and the instructions.

Notably, the new version of Form I-9 will include a checkbox for employers enrolled in E-Verify to signal that they used a DHS-authorized alternative procedure instead of in-person verification.

In addition, the form has several other changes to help streamline the process and make it more user-friendly, including:

• Reduced page counts: The I-9 form is now a single-sided sheet, which can be used with tablets and mobile devices, and the instructions have been reduced from 15 pages to eight
• New supplemental sections: Section 1 “Preparer/Translator Certification” and Section 3 “Reverification and Rehire” area were moved to separate standalone supplements, now “Supplement A” and “Supplement B” respectively, and
• Editorial changes: “Alien authorized to work” has been revised to “noncitizen authorized to work” and clarification has been added regarding the difference between “noncitizen national” and “noncitizen authorized to work.”

Other changes include an updated notice on avoiding discrimination with Form I-9, revisions to the “Lists of Acceptable Documents” page and instructions for the new alternative procedure checkbox. The full document lists all changes and updates.

The new version of Form I-9 (Rev. 08/01/23) is available to download on the USCIS website. The older version of Form I-9 (Rev. 10/21/19) will be accepted until October 31, 2023.

Alternatives to physical inspection

A final rule regarding alternative procedures for document inspection was also announced, which allows the secretary of homeland security to authorize “alternative document examination procedures” instead of an in-person review.

An alternative procedure was authorized on the same day in a separate document, which offers “at least an equivalent level of security” as a physical inspection. It allows employers who are enrolled in E-Verify and in good standing to continue to conduct electronic verifications after August 1, 2023.

In the alternative procedure, employers must also:

• Review copies of employment authorization and identity documents
• Retain copies of all documents examined
• Conduct a live video meeting with the employee, and
• Create an E-Verify case for new hires.

The authorization specifies that inspection must be available to all eligible employees. For example, if a qualified employer inspects documents for the entire worksite, they must do so consistently with all employees.

However, employers can choose to use the alternative procedure with remote employees only, and continue requiring in-person inspection for hybrid and on-site employees “so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status or national origin.”

Although the alternative procedure is permanent, it’s subject to amendment or cancellation by the Secretary.

Proposed pilot program

Despite the alternative procedure only being available to employers enrolled in E-Verify, it seems that ICE is looking at expanding the pool of eligible employers with a new proposed pilot program, announced on Aug. 3. 

The program would allow some employers who are not enrolled in E-Verify to inspect documents remotely. Employers enrolled in E-Verify would not be allowed to participate and participants will be limited to a specified size threshold.

Many elements of the pilot program would be similar to the E-Verify version – such as remote document inspection and retention – but would ask participants to track and report data, as well as required training to detect fraudulent documents and anti-discrimination training.

ICE also specified that participating employers may be prohibited from using the verification procedure for certain groups, such as employees who work on the same worksite or in a hybrid capacity. Alternatively, employers may be given a timeframe to complete a physical document examination after an initial remote inspection.

The pilot is intended “to evaluate a range of potential effects on system integrity,” per ICE, including fraud rates and discrimination within the pilot program versus physical inspection.

Comments are encouraged and will be accepted until October 2, 2023, per ICE.