What is Up with I-9s

The I-9 form expired on October 31, 2022, and now, seemingly out of the blue, as of August 1 we will have a new form plus something even more surprising: The option for virtual verification (at least for some employers)! Given that the announcement was made on July 21, this seems sudden. But in reality, it is the fruit of several years of dialog with stakeholders¹, the experience with Covid Flexibilities, and hard work by those in the federal agencies who regulate I-9s. While we see room for continued improvement, both developments are a step forward.

Below we will highlight the changes to the I-9, the new optional virtual verification procedure, and when it can be used to clean up after using virtual Covid Flexibilities.

New I-9 Form & Instructions

All employers must use the new I-9 form starting October 31, 2023. Employers may begin using the new form starting August 1.

The official form and instructions have not been released as of this writing. The following comments are based on the draft form dated July 19, 2023.

Improvements to the form include:

• A hyperlink to the web-based instructions page, so that employers accessing the form online can easily find the current instructions.
• A clearer statement of what actions could constitute discrimination in the I-9 completion process.²
• A more understandable format for Section 1 for employees to complete, especially in choosing which of the four citizenship or immigration status boxes to check.
• Moving the Preparer or Translator Certification (now Supplement A) and Section 3 (now Supplement B) for re-verification and rehire to a separate page so that the initial I-9 is on one page. This change prevents the problem of remembering to fill out the top of the second page and makes recordkeeping much easier.
• A clearer Section 2 format that makes it less likely the employer will forget to fill in the first day of employment, and provides more room in the Additional Information box, which is used for so many notations.
• An enhanced List of Acceptable Documents (“LOAD”)³, including:
  • A better explanation of the rule about expired documents and notice of the possibility of automatically extended documents (with a live link at the bottom of the page); Links to examples of List C, Item 7 documents, I-9 Central, and the Employer Handbook to assist employers in identifying the numerous documents not included on the LOAD;
  • Information about acceptable receipts.
• A better explanation of when to use Supplement B (formerly Section 3) for re-verification or rehire with a link to the Employer Handbook and some additional space to add notes or additional documents as needed. Note that the employee’s name will need to be added at the top of Supplement A or B if used.

The I-9 instructions shrank from 15 to 8 pages and are presented in a readable format and tone.  Whereas the prior instructions made our eyes glaze over, the new instructions are clear and often helpful.

Improvements to the instructions include:

• Ending the “N/A” madness. The prior instructions directed that “N/A” (for “not applicable”) be added to each space not completed. The online version of the form automatically added “N/A”. Those reviewing I-9s can now save their seek-and-find talents for playing Hidden Folks.⁴
  
• Forsaking the quest to standardize abbreviations for common documents. The prior instructions directed employers to abbreviate “Social Security Card” as “(Unrestricted) Social Security Card”, for one example. The current instructions state that common abbreviations may be used, including “DL” for “driver’s license” or “SSA” for “Social Security Administration.” Think how many hours of your life you just got back.
  
• Devoting a separate section to how to complete the I-9 if the employer is registered for E-Verify.  This information was scattered throughout the prior instructions.

Optional Virtual Review

The point of the I-9 is for employers to determine if an employee is authorized to work in the United States. The continuing cat-and-mouse game between federal and state governments and fraudulent document providers has resulted in security features on official documents that are easier to detect in person. Examples include raised printing and micro printing on Social Security Cards or holograms on “green cards”. For this reason, U.S. Immigration and Customs Enforcement (“ICE”), the federal agency that enforces and fines on I-9 violations, has rebuffed past efforts to allow virtual review of documents, even when video conferencing became available.

Then came Covid. ICE wisely authorized and continued to re-authorize temporary Covid Flexibilities that allowed employers in certain situations to verify I-9 documents virtually through July 31, 2023.⁵ More on this later.

Seeing the widespread adoption of work-from-home and long-distance remote hiring, U.S. Citizenship and Immigration Services (USCIS), the agency that produces and explains the I-9, proposed last August that virtual verification be made available in certain scenarios. After reviewing 512 public comments, it published the final rule on July 25, 2023, with an effective date of August 1.⁶

Optional is Optional

Only certain “qualified employers” may use the new procedure (which USCIS calls Optional Alternative 1, so we will call it “OA1”), but it is always optional. A qualified employer need not use OA1 for any employee. For remote employees, all employers may instead use an “authorized representative,” which is basically anyone the employer finds to review I-9 documents and complete Section 2. However, if an authorized representative is used, the employer will be liable for any mistakes made by that person. OA1 may be a time and/or money saver for this reason alone.

Qualified Employers

An employer who may consider using OA1 must be a “participant in good standing in E-Verify.”  This requirement is further defined as an employer who:

• Has enrolled in E-Verify for all hiring sites at which OA1 will be used;
• Is in compliance with all E-Verify requirements, including using it for all new hires at the sites that are enrolled; and
• Continues to participate in good standing at the time OA1 is used.

Such an employer is referred to as a “qualified employer” in the rule.

Conditions of Use

No discrimination: A qualified employer must use OA1 consistently at any hiring site at which it is used. The employer cannot choose to use it for certain employees and not others based on employees’ citizenship, immigration status, or national origin.

However, the qualified employer may choose to use OA1 only for those working remotely, so long as that practice is also done consistently.

Keeping copies of documents: If OA1 is used, the qualified employer must retain a clear and legible copy of the front and back of all documents presented in the process and make them available for inspection in an I-9 audit. If not using OA1, an E-Verify employer is required to retain only those documents presented for identification with a photo. Retention of additional documents is necessary only for those employees verified using OA1.

Additional training: A qualified employer must complete an E-Verify tutorial that addresses fraud awareness and anti-discrimination measures that will be available on August 1.   

Check the alternate procedure box: The new I-9 form has a box in Section 2 to indicate that OA1 was used. If the employer is using the old I-9 form (available until October 31), the use of OA1 is noted in the Additional Information box in Section 2.

Do not force employees to use the procedure: If an employee refused to participate in OA1, the employer must allow that person to present documents for in-person review by the employer or an authorized representative. This rule is to address privacy concerns regarding transmitting documents, potentially with PII⁷, for remote review.

How to Do It

Those qualified employers using OA1 must complete the following steps in the same time frame as for any I-9:

1. Examine copies of the front and back of the documents presented by the employee for I-9 verification.
2. Have a live video interaction (Zoom, Teams, or similar) with the employee presenting the documents. The employee must show the same documents sent for review and the employee’s face must be visible in the interaction.
3. Complete Section 2 if the documents appear to be genuine and relate to the employee (or ask for other documents as necessary as with any other I-9 verification.)
4. Check the box on the new I-9 or – before October 31, 2023 – write a note in the Additional Information box indicating that OA1 was used if using the old form.
5. Retain copies (back and front) of the documents present for review by ICE upon audit consistent with I-9 document retention rules.
6. Create an E-Verify case for the employee, which will be newly hired because OA1 cannot be used for existing employees except for the Covid Flexibility clean-up we will describe below.

Cleaning up after Covid Flexibility

ICE allowed employers in certain situations to use virtual review as explained previously. The new rule allows those employers who were “qualified employers” at the time they used Covid Flexibility to use OA1 to reverify those employees, which must be completed by August 30, 2023.

Use of OA1 is available only to those employers who were enrolled in E-Verify and created a case in E-Verify for the employee whose documents were virtually reviewed (if a case did not already exist, such as for re-verification). 

If the employer met the definition of a “qualified employer” at the time of virtually verifying an employee under Covid Flexibilities (i.e., between March 20, 2020, and July 31, 2023) and created a case in E-Verify if necessary, then the employer can use OA1 to reverify that employee. 

The use of OA1 and the date it was done must be noted in the Additional Information box in Section 2 or 3 of the I-9.

A qualified employer may not unlawfully discriminate in deciding which employees may be reverified using OA1.

Although employers who did not use E-Verify during Covid Flexibilities may become qualified to use OA1 by signing up for E-Verify now and following the conditions and steps noted above, they cannot use OA1 to reverify the employees hired using Covid Flexibilities and must re-verify in person.

Conclusion

As with all new rules, many questions remain open and application to specific circumstances may be unclear.  The AILA Worksite Verification Committee and others will be working with USCIS to gain clarity.  Any employer having questions should contact your Dentons immigration attorney.

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Footnotes:

[1] Including the American Immigration Lawyers Worksite Verification Committee.

[2] “All employees can choose which acceptable documentation to present for Form I-9. Employers cannot ask employees for documentation to verify information in Section 1, or specify which acceptable documentation employees must present for Section 2 or Supplement B, Reverification and Rehire. Treating employees differently based on their citizenship, immigration status, or national origin may be illegal.”

[3] We cannot help but note that more than 40 acceptable documents have been identified that are not included on the old form and the new form does not link to a complete list of acceptable documents. The list is ever-changing, which makes compliance difficult for employers without a better tool.

[4] https://gamerant.com/best-hidden-puzzle-games/#hidden-folks

[5] See https://www.uscis.gov/i-9-central/form-i-9-related-news/temporary-policies-related-to-covid-19

[6] Optional Alternatives to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9)

[7] Personally identifiable information.