Upcoming Form I-9 Changes and New Alternative Remote Verification Procedure
Revised I-9 Form
On July 21, 2023, the U.S. Department of Homeland Security (DHS) announced that a revised Form I-9 would be released on August 1, 2023 for employers to use going forward for the required verification of employment eligibility in the US which employers must conduct at start of employment for new hires in the U.S. Employers will be permitted to use the existing I-9 form through October 31, 2023 but then must use the new form on or after November 1, 2023. The revised I-9 form, once published, will be available here.
The main changes to the I-9 form include (i) shortening the employee (Section 1) and employer (Section 2) parts to a single page instead of two separate pages, (ii) separating the Section 1 preparer/translator certification and Section 3 reverification/rehire portion into stand-alone supplements for employers to use when needed, (iii) reducing the size of the accompanying I-9 instructions from 15 pages to 8 pages, and (iv) including a checkbox for employers to indicate use of DHS’s new alternative optional procedure (explained further below) for remote/virtual review of new hire supporting documents instead of standard in- person physical examination.
As the hirer of their talent and crewmembers, the production company is the responsible employer for I-9 process compliance, and EP will have the required revised I-9 form available in paper payroll start packets and digital in SmartStart for production company clients to use by the October 31, 2023 deadline.
New Alternative Optional I-9 Supporting Document Remote Verification Procedure
DHS’s new remote option which employers can use starting August 1, 2023 must be understood in the context of the existing I-9 verification process. The I-9 standard process is essentially two steps. First, the new hire completes Section 1 of the I-9 form which covers personal and citizenship/immigration status of the new hire. Second, the employer reviews the completed Section 1, conducts an in- person physical examination of original document(s) presented by the new hire to verify identity and employment authorization in the U.S., and completes Section 2 of the I-9 form recording the Section 1 review and supporting document examination.
During the COVID pandemic, DHS temporarily relaxed the in-person physical original document examination to permit initial remote review under restrictive conditions. The temporary remote verification flexibility was limited to new hires who were fully remote, and the employer is required to complete a catch-up in- person physical document review and notate the review accordingly in the additional information box of Section 2 of the I-9 for all such employees at the sooner of either such employees assuming an in-office presence or the specified federal deadline after declared-end of the pandemic. DHS ended the remote verification COVID temporary relaxation on July 31, 2023 and requires all employers using the temporary relaxed procedure to complete the catch-up in- person documentary review and corresponding update of the I-9 form for any remaining employees by August 30, 2023 who were provisionally remote-verified under the temporary relaxed DHS procedure. More information about expiration of the COVID temporary relaxed I-9 remote verification process is available here.
Because of the burdens of the required catch-up in-person verification and corresponding updating of the I-9 form and other restrictions of the temporary COVID remote verification flexibility, employers not interested in availing themselves of that temporary restrictive option could accomplish the required in- person supporting document review for remote employees through use of a person designated by the employer outside the employer’s organization (such as a personal associate of the remote employee) as an authorized representative of the employer for the supporting in-person document review and completion of Section 2 of the I-9. Under this long-time existing procedure, the employer can choose any person (except the new hire) as the employer’s authorized representative, but the employer is responsible for I-9 errors by the employer’s authorized representative. Employers concerned about the outside authorized employer representative erring in the verification process could use an experienced member of the employer’s personnel to monitor via video conference the authorized employer representative’s proper completion of the supporting document review and completion of Section 2. See Section 2.0 (Who Must Complete Form I-9) here for more information about outside employer authorized representatives.
As an additional optional alternative to existing standard physical in-person review of new hire I-9 supporting documents (including use of outside employer authorized representatives), DHS just publicized a supplemental permanent rule allowing employers to complete the required I-9 supporting document review remotely under specific conditions starting on August 1, 2023. First, the employer must be enrolled and maintain good standing in E-Verify. Second, the employer must follow several steps for each new hire verified remotely instead of in-person within 3 business days of the new hire’s start date: (i) obtain and examine copies of the front and back of the supporting documents from the new hire before the live video interaction to ensure they reasonably appear to be genuine, (ii) conduct a live video interaction with the new hire who presents the originals of those documents on-screen for match and genuineness review, (iii) indicate in the Section 2 check-box that the alternative remote/virtual procedure was used, and (iv) retain copies (front and back) of supporting documents in event of government audit.
E-Verify employers who decide to use the new additional optional remote/virtual I-9 supporting document verification alternative can limit which employee populations to use it at the hiring sites where E-Verify is used but must do so consistently for such populations and cannot discriminate based on legally protected characteristics, like immigration status. As an example, an E-Verify employer can use the remote verification alternative only for employees who are fully remote but cannot decide to use it only for those fully-remote employees who are non-resident aliens. Also, employers enrolled in E-Verify during the temporary COVID temporary remote verification relaxation period are allowed to use the new alternative remote verification procedure to satisfy the otherwise in- person catch-up supporting document review that would need to occur by August 30, 2023, but these employers would need to follow all required steps of the new alternative procedure.
EP supports E-Verify for production clients operating in those states which mandate E-Verify for private employers (currently, Alabama, Arizona, Florida, Georgia, Louisiana, Missouri, North Carolina, South Carolina, Tennessee, and Utah), but note that a production company client looking to use this new federal virtual/remote I-9 verification optional alternative for their talent and crew populations outside of E-Verify mandatory states would need to enroll in E- Verify itself to use the remote alternative for its workforce population outside of those E-Verify mandatory states.
Click here for further information about DHS’s new additional optional I-9 supporting document remote/virtual review alternative.
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For any questions about this Alert, you may contact:
Scott Bishop, Vice President, Employment Law | sbishop@ep.com