Immediate Action Required: Make the Swift Switch to the New Form I-9

As we previously reported, this summer, the U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of Homeland Security (DHS) announced significant updates to enhance the employment verification process. In addition to an alternative procedure for qualified E-Verify employers to virtually inspect employee documents,  the USCIS and DHS released a new Form I-9. Employers have been able to voluntarily use the new Form I-9 since August 1, 2023, but as of November 1, 2023, such use is now mandatory.  Failure to use the correct edition of the Form I-9 at the time of hire is a violation of the I-9 rules and may result in penalties ranging from $272 to $2,701 per violation for first-time offenses (greater penalties apply to repeat offenders).

Notable Changes to Form I-9

According to the DHS, the Form I-9 updates are intended to “make it easier for employers to use the form,” including by making the form accessible on tablets and mobile devices. A comprehensive overview of the DHS’s updates can be found here, though some notable changes to the new Form I-9 and its instructions include:

Form I-9 Changes

• The “Anti-Discrimination Notice” clarifies that employers may not ask employees for documentation to verify the information included in Section 1 (which is described in further detail below) and notes that “[t]reating employees differently based on their citizenship, immigration status, or national origin may be illegal.”
• Sections 1 and 2 (which correspond with the “Employee Information and Attestation” section that new employees must complete and the “Employer Review and Verification” section that their employers must complete) are reduced to a single sheet.
• Rather than “alien authorized to work,” Section 1 refers to “noncitizen authorized to work” and provides additional information regarding the difference between a “noncitizen national” and “noncitizen authorized to work.”
• A checkbox has been added to Section 2 for E-Verify employers to use to indicate that they virtually examined the employee’s Form I-9 documents pursuant to the USCIS and DHS’s approved alternative procedures.
• Information regarding preparers and/or translators that an employee uses to complete Form I-9 (including certification of the same) is moved from Section 1 to a standalone Supplement A.
• Reverification and rehire information is moved from Section 3 to a standalone Supplement B.
• The List of Acceptable Documents includes new information regarding acceptable receipts, guidance, and a link to information on automatic extensions of employment authorization documentation.

Form I-9 Instructions Changes

• Reduced from 15 pages to 8 pages.
• Adds definitions of key actors, including “employee,” “employer,” and “authorized representative.”
• Streamlines steps for completing Form I-9.
• Adds instructions for completing the E-Verify employers’ alternative procedures checkbox.
• Removes the abbreviations chart.

Next Steps for Employers

• If you are not doing so already, immediately begin using the 08/01/23 edition of Form I-9 for all new employees hired or rehired on or after 11/01/2023.
• Continue to retain and store copies of completed Forms I-9 for three years from the employee’s date of hire or one year from the date the employee’s employment ends (whichever is later).
• Continue to make completed Forms I-9 available for inspection if requested by the DHS or other authorized government officials.

If you are a qualified E-Verify employer, ensure that your use of approved alternative procedures to virtually review employees’ Form I-9 documentation is consistently applied in a non-discriminatory manner.