We are writing to inform you of the recent updates from the U.S. Citizenship and Immigration Services (USCIS) regarding the new version of the I-9 form and significant changes to employers’ verification procedures. As a responsible employer, it is crucial to be aware of these updates to ensure compliance with immigration regulations and avoid any potential penalties or legal issues.

1. Reverify Employees.  In-person Verification Now Required. 

During the pandemic, USCIS adopted a temporary rule waiving the requirement that employers verify employment eligibility through in-person scrutiny of the new employee’s records.  That waiver expires July 31, 2023.  On and after August 1, 2023, employers must conduct a physically-in-person review of the employee’s original documents that evidence their legal right to work in the United States.  Here is a list of acceptable documents.

If your business hired employees during the pandemic and completed an I-9 Form without in-person physical inspection of their records, then you must now re-verify each such employee’s right to work in the United States by conducting an in-person inspection of that employee’s records no later than August 30, 2023.

2. New I-9 Form (Form I-9, Employment Eligibility Verification):

On August 1, 2023, USCIS will publish a new version of Form I-9, the Employment Eligibility Verification Form. This new version, which replaces the previous edition dated 10/21/2019, must be used by all employers to verify the identity and employment authorization of individuals hired to work in the United States.

Employers may continue to use the 2019 version of the I-9 form until October 31, 2023.  However, to simplify compliance, we recommend adopting the new form on August 1, 2023, when it becomes available.  After October 31, 2023, employers are required to ensure that the new I-9 form is used for all new hires and reverifications.

Failure to use the updated form may result in non-compliance penalties.

3. The updated Form I-9 now consists of two sections and two supplements.

At the time of hire, the new employee must complete Section 1 which gathers identifying information about the employee, as well as any preparer or translator if utilized. The employee must indicate their citizenship status, specifying whether they are a U.S. citizen, noncitizen national, lawful permanent resident, or noncitizen authorized to work in the United States.

Within 3 days of hiring the new employee, employers must complete Section 2. It requires the employer to provide identifying information about their organization and collect details about the employee’s identity and employment authorization documents. The employee must present original documentation as evidence of their identity and work authorization, which the employer is responsible for reviewing.

The two supplements included in the new Form I-9 are as follows:

Supplement A: This section contains the Preparer and/or Translator Certification for Section 1 of the form.

Supplement B: Formerly included as Section 3 on prior versions of the I-9 form, this section is used for reverification and rehire purposes.

4. Alternatives to In-Person Verification:

On July 25, 2023, DHS published a final rule authorizing an alternative procedure to the in-person physical examination requirement. This new rule introduces a checkbox on the new I-9 Form that creates an optional alternative to the in-person physical document examination requirement.  To take advantage of this alternative to in-person document inspections check the box on the new I-9 Form and employers must:

        • Participate in the E-Verify program and complete an E-Verify tutorial.
        • Meet additional document retention and security requirements.

As your trusted legal advisors, we strongly advise your organization to promptly adopt these changes to remain compliant with the latest USCIS regulations. Non-compliance with Form I-9 requirements and E-Verify procedures can lead to serious consequences, including fines and potential legal liabilities.

Our legal team is here to assist you with any questions or concerns you may have regarding these updates, or other matters that may impact your business. Please do not hesitate to reach out to us for guidance and support.

Thank you for your attention to this important matter. We remain committed to providing you with the highest level of legal service.  Please let us know if you need help with these issues.