By Mai Chao Chang and Doug Witte, Boardman Clark
The Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) have implemented changes beginning on August 1, 2023, introducing a new Form I-9 and allowing remote document verification for E-Verify users.
Current regulations require employers to physically examine documents presented by new employees within three business days after the first day of work to ensure that documents reasonably appear to be genuine and relate to the employee. Employers then complete Section 2 of Form I-9. Employers are generally not required to make and retain copies of their employees’ identification and employment verification documents, but if employers opt to do so, they must apply the same process to all employees. Employers who use E-Verify follow different rules, including the document retention requirements for employee-provided documents.
As of August 1, 2023, DHS permits qualified employers enrolled in E-Verify to use an alternative procedure to remotely verify an employee’s I-9 identity and employment eligibility documents. This alternative verification method is not available for employers who do not use E-Verify.
Under the new guidelines, within three business days of an employee’s first day of employment, a qualified employer (or an authorized representative acting on such an employer’s behalf, such as a third-party vendor) who chooses to use the alternative procedure must do the following:
1. Ask the employee to send a copy of the document(s) satisfying I-9 requirements to the employer. The employer shall then examine the copies (front and back, if the document is two-sided) to ensure that the documents presented reasonably appear to be genuine;
2. Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The document(s) presented must be the same as originally provided;
3. Indicate on the Form 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;
4. Retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back if the documentation is two-sided); and
5. In the event of a Form I99 audit or investigation by a relevant federal government official, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee.
This alternative process is optional, and qualified employers may continue to examine documents instead of using the alternative procedure.
Qualified employers who were enrolled in E-Verify during the COVID-19 temporary flexibilities may use this alternative procedure to satisfy the requirement to physically examine Form I-9 documentation.
Beginning on August 1, 2023, employers may begin using the new version of Form I-9. USCIS recently rolled out this new form, which has been streamlined and shortened. The revised Form I-9 will have the following changes:
Employers may continue to use the older version of Form I-9 (Rev. 10/21/2019) through October 31, 2023. After that date, employers who fail to use the new form will be subject to penalties. New Form I-9 edition can be downloaded from the USCIS website.
Mai Chao Chang is an associate with the labor and employment and family law practice groups. Her practice is focused on employment-based immigration and intersecting legal issues involving family and immigration law.
Doug Witte represents private and public sector employers in all aspects of labor and employment law. He represents contractors and subcontractors on various construction issues, including labor law, prevailing wage issues on public construction projects, and public and private construction lien and bond issues.
© ABC of Wisconsin | All Rights Reserved | Lion Tree Group Site Design | Privacy Policy
