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For decades, employers have been confused and frustrated by the “physical review” requirement for Form I-9 documentation. Especially as technology has become more advanced, employers have struggled to understand why they must meet, in person, with every new hire and hold that new hire’s documentation in hand prior to completing the Form I-9.
This confusion may now (mostly) be over. While employers and legal counsel alike may continue to argue that physical review does not necessarily require in-person review, the Department of Homeland Security published in July a rule in the Federal Register reflecting a compromise and offering a great deal of clarity. Shortly thereafter, a new version of the Form I-9 was published, with significant revisions from the prior version. This article covers the highlights of the new rule and the new Form I-9.
Background
All U.S. employers are required to complete a Form I-9 for every new hire in the U.S. The Form I-9 is used to verify each new employee’s identity and employment authorization.
The Form I-9, until August, required that an employer representative meet, in person, with each new hire to review original documentation from defined lists of acceptable items.
In an effort to modernize and to align with the business realities of employers today, and after conducting studies to determine whether doing so would increase the risk that employers would hire individuals who are not authorized to work in the U.S., DHS agreed to allow E-Verify employers to conduct virtual document review following a defined procedure.
The new rule
Under the new rule, employers can avoid in-person document review meetings by reviewing documentation pursuant to a so-called “alternative procedure” if they meet certain requirements. To be eligible to use the virtual verification procedure, employers must meet the following requirements:
1. The employer must be enrolled in, and in good standing with, E-Verify. The employer need not be enrolled at every hiring site across the U.S. but must be enrolled at every hiring site that allows virtual verification under the alternative procedure.
2. The employer must obtain and retain clear copies of the front and back of the documentation presented by the employee for Form I-9 purposes.
3. After the employee transmits a clear copy of the documentation, the employer must conduct a live video interaction with the employee in which the employee displays the documentation.
Employers meeting the above requirements will no longer be required to conduct in person meetings with new hires to complete the Form I-9.
Employers completing the new version of the Form I-9 — which was available for use by employers beginning Aug. 1, but which employers were required to adopt by Nov. 1 — will have access to a new checkbox. This checkbox will give the employer the opportunity to indicate that the Form I-9 was completed pursuant to the “alternative procedure.”
Employers who used the previous version of the Form I-9 between Aug. 1 and Oct. 31 may still use the alternative procedure and were instructed to indicate its use in the “Additional Information” field in Section 2 of the Form I-9.
Employers who wish to use the “alternative procedure” are encouraged to speak with an immigration attorney to confirm (1) that they are eligible and (2) that if they are not using the procedure for all new hires, they are using it in a way that limits the risk of discrimination claims.
All this and a new Form I-9?
Concurrent with its announcement of the virtual verification rule, DHS published a new Form I-9. The form was available for use by employers starting on Aug. 1. Employers were required to begin using it on or before Nov. 1.
The new Form I-9 is, in most cases, a single-page form. By removing from the main form what used to be the Preparer/Translator Section and what used to be Section 3 — both of which become supplements to be used only when applicable — United States Citizenship and Immigration Services has reduced Sections 1 and 2 to a single page.
Other notable changes:
1. USCIS no longer refers to individuals as “aliens,’” changing the prior citizenship status category from “alien authorized to work” to “noncitizen authorized to work.”
2. The instructions no longer require individuals to input “N/A” in many fields, allowing most to be left blank as applicable.
3. The Lists of Acceptable Documents (LOAD) was updated to include certain receipts as well as guidance and links to information about acceptable alternatives not listed on the LOAD.
4. The form includes a checkbox for employers to indicate that document review was conducted under the alternative procedure outlined above, in lieu of in-person review.
Final thoughts
This is the most extensive and exciting update to the Form I-9 process — and the form itself — that we have experienced in a very long time, perhaps even since the Form I-9 was originally published. USCIS has taken major steps to modernize the process.•
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Nici Kersey is of counsel in the Labor and Employment Group at Bose McKinney & Evans LLP, where she represents employers in immigration matters. Opinions expressed are those of the author.
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