Posted on: October 11, 2023                                                                                        

All employers must complete and retain a Form I-9 for each employee at the time of hire. The form is used to verify a new hire's identity and work authorization. U.S. Citizenship and Immigration Services (USCIS) recently released a revised version of the Form I-9, which employers must begin using soon. Below, we provide answers to some frequently asked questions about the new I-9.

Q: When must employers begin using the new version of the Form I-9?

A: Employers must begin using the new version by November 1, 2023. In the meantime, employers have the option of using either the new version or the outgoing version.

Q: How can I tell which version is the new one?

A: One way is to look at the dates of the forms. The new version is dated 8/1/23. The outgoing version is dated 10/21/19.

Q: Do I need to have all of my existing employees complete the new version of the I-9?

A: No. Employers shouldn't complete a new I-9 for existing employees unless they have sufficient justification (such as when they must re-verify an employee because their work authorization is expiring and the form they used at the time is no longer valid). Without sufficient justification, requiring an existing employee to complete a new I-9 may raise discrimination concerns.

Q: What’s changed in the new version of Form I-9?

A: Changes in this new version of Form I-9 include:

• A checkbox for employers that use USCIS’s new remote inspection process to indicate that they examined the Form I-9 documentation remotely rather than performing a physical examination (see below).
• A revised List of Acceptable Documents that now includes some acceptable receipts, and guidance and links to assist employers with information on automatic extensions of employment authorization documentation.
• Section 1, Preparer/Translator Certification is now on a separate, stand-alone supplement to be used only when necessary.
• Section 1 and Section 2 are now on a single-sided sheet.
• Section 3, Reverification and Rehire is now a stand-alone supplement to be used only when necessary.
• Revised Form I-9 Instructions are condensed from 15 to 8 pages. (Note that an employer is required to provide the Form I-9 Instructions with the Form I-9 to an employee when requesting the employee complete Section 1.)

Q: How long after hiring a new employee do we have to complete the I-9? Has this timeframe changed?

A: The timeframe remains the same:

• Section 1, which requires the employee to attest that they are authorized to work in the United States, must be completed by the end of the employee's first day of work for pay.
• Section 2 must be completed by the employer within three business days. For example, if an employee begins work on a Monday, Section 2 should be completed by Wednesday. It requires the employee to present certain documents that demonstrate their identity and work authorization. The employer must examine the document(s) to determine whether they reasonably appear to be genuine and to relate to the employee. The employer must record the document information in Section 2.

Q: Can I require new hires to present specific documents from the Form I-9's List of Acceptable Documents?

A: No. An employer may not require the employee to present specific documents in order to verify employment eligibility. The employee has the right to choose which documents to present, provided they are on the I-9's List of Acceptable Documents.

Q: Am I required to photocopy the I-9 documentation that an employee presents?

A: With limited exceptions, there is no requirement for employers to make photocopies of the documentation provided by an employee to establish their identity and work authorization. However, if you do retain copies, you must do so consistently for all new hires. Photocopies should be kept with the employee's I-9 form.

Q: How can I handle Form I-9 requirements for newly hired employees who will be working remotely?

A: Typically, for the Form I-9, employers must examine an employee’s documentation in the employee’s physical presence. 

However, if an employer is unable to physically meet with the worker to review Form I-9 documents, federal law allows employers to use an authorized representative to fulfill this function on the employer’s behalf. Under this method, the authorized representative will view the documents in the remote employee’s presence. 

And beginning August 1, 2023, employers may follow a new alternative procedure to the in-person physical document examination method, provided they meet certain requirements. To qualify, employers must be enrolled in E-Verify and be considered in good standing.

Q: What does the alternative procedure for newly hired employees entail?

A: First, the employee must transmit to the employer a copy of the documents that establish identity and employment eligibility.

Second, the employer must examine the front and back (if the document is two-sided) copy of the identity and employment authorization documentation to ensure that the documentation presented reasonably appears to be genuine.

Third, the employer must conduct a live video interaction with the individual who must present the same documentation to ensure that the documentation reasonably appears to be genuine and related to the individual.

Fourth, the employer must indicate on the new I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable. 

Fifth, the employer must retain a clear and legible copy of the documentation (front and back if the documentation is two-sided), in alignment with applicable recordkeeping regulations. 

Sixth and last, the employer is expected to submit an E-Verify case for their new hire following government guidelines.

Q: What is E-Verify?    

A: E-Verify is an internet-based system run by the federal government that compares information entered by an employer from an employee’s Form I-9, to records available to the U.S. Department of Homeland Security and the Social Security Administration to confirm employment eligibility. 

E-Verify can provide results within as little as three to five seconds.

Q: What is considered “in good standing” for the purposes of E-Verify?

A participant in good standing in E-Verify is an employer that:

• Has enrolled in E-Verify with respect to all hiring sites in the United States that use the alternative procedure;
• Is in compliance with all requirements of the E-Verify program, including, but not limited to, verifying the employment eligibility of newly hired employees in the United States; and
• Continues to be a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure.

If an employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site. 

However, an employer may choose to offer the alternative procedure for remote hires only, but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity. Employers may do this so long as they do not adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status or national origin.

As mentioned above, employers that use the alternative procedure with an employee must retain a clear and legible copy of all documents presented by the employee seeking to establish identity and employment eligibility for Form I–9.

Q: How long must I retain I-9s?

A: Employers must retain I-9 forms for at least three years, or for one year following the employee's separation from the company, whichever is later. It is a best practice to store all I-9 forms together in one file since they must be produced promptly following an official government request.

Conclusion

Make sure you use the new version of the Form I-9, which is available for download from RUN Powered by ADP (RUN)®, by November 1, 2023, and complete and retain the form in accordance with the law.