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Change is Coming to Form I-9s

The current version of the Form I-9 expired on October 31, 2022, but last year, the U.S. Citizenship and Immigration Services (USCIS) posted a notice stating that employers should continue using the current Form I-9 until further notice. The looming end of the COVID-19 public health emergency on May 11, 2023 also factors into the equation in understanding upcoming changes to Form I-9.


Form I-9 Remote Inspection Accommodation Extended to July 31, 2023

To accommodate social distancing and remote work during the pandemic, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced special rules in 2020 permitting employers to remotely inspect employee work authorization documents for purposes of Form I-9 compliance. With a return to physical inspection delayed until the expiration of the special rule or the end of the public health emergency, this accommodation has been extended to July 31, 2023.

Keep in mind that this provision only applies to workplaces operating fully remotely and employees hired on or after April 1, 2021 who are fully remote due to COVID-19 precautions. Employers must inspect employees’ Form I-9 identity and employment eligibility documentation in person for those employees who are physically working at a company location on any regular, consistent, or predictable basis.

Within three business days of the expiration of this accommodation, employers must complete in-person verification of identity and employment eligibility documents for all employees who meet the following criteria

  • Hired on or after March 20, 2020,
  • Remotely presented their identity and eligibility documents,
  • And still work remotely.

To meet the deadline, employers may consider starting the in-person verification of these documents now. Employers must update Form I-9’s with information about the physically examined documents, who completed the examination, and the date the review occurred. Review the guidelines for document verification under these circumstances.

Remote employees who return to in-person work before the rule’s expiration should continue to have their documents verified in person within three business days of their return.

Proposed Changes to Form I-9 in 2023

In 2022 DHS and ICE issued a Notice of Proposed Rulemaking that proposes significant changes to the I-9 form itself and alternative procedures for document verification, including a permanent solution to remotely verify documents of remote workers. The proposed rule seeks to put Sections 1 (Employee Information) and 2 (Employer Review and Verification) on one page and Section 3 (Reverification and Rehires) on a separate, supplemental document for use when needed. The Form I-9 instructions are also expected to be cut in half.

The new Form I-9 is projected to be released in early August 2023, coinciding with the end of the flexible remote verification rule. It is still unclear which proposed changes will be formally adopted. For example, DHS could require sign-up with E-Verify and impose other IT requirements to take advantage of the expected permanent standard for remote document verification. The Department of Homeland Security will publish a Federal Register notice to announce the new version of the Form I-9 once it becomes available.

OneDigital will continue to bring you updates as they occur. To learn more about this and other compliance topics, watch: Need-to-Know Quarterly Compliance Recap for Employers.