The Immigration Reform and Control Act (IRCA) of 1986 requires all U.S. employers, regardless of size, to complete a Form I-9 upon hiring a new employee to work in the United States. This form serves to verify an employee’s identity and ability to work in the country.
On August 1, 2023, a new Form I-9 was released, which employers must begin to use no later than October 31, 2023. Additionally, employers that verified remote hires’ Form I-9 identity and work authorization documents virtually during the COVID-19 pandemic are required to physically inspect those documents by August 30, 2023. Failure to comply with Form I-9 requirements may result in civil and criminal fines and penalties. It is therefore critical that employers understand and implement Form I-9 requirements in accordance with these recently established deadlines as set forth herein.
Completing Form I-9
An employee must complete Section 1 of Form I-9 by the employee’s first day of work. Within 72 hours after employment commences or by the end of the third business day, the employer must complete Section 2 of the form, even if the employee is not scheduled to work for some or all of that period. For individuals hired for three days or less, the entire form must be completed no later than the first day of work for pay.
To complete Form I-9, the employee is required to present certain documents, as outlined on the document itself, proving identity and employment eligibility. While the employee is required to complete Section 1 of the form, it is ultimately the employer’s responsibility to ensure that the form is properly completed, including Section 1 by the employee.
In order to complete Section 2 of Form I-9, the employer is required to examine the documents presented by the employee and record the document numbers and expiration dates in the appropriate columns. The employer must then certify on the form that the documents a) reasonably appear to be genuine; b) relate to the individual; and c) authorize the individual to work. The physical examination of documents must be done in-person by the employer, or a representative of the employer, unless the employer is enrolled in E-Verify and certain conditions are met (as discussed more fully below).
Section 3 of Form I-9 is used when rehiring an employee, documenting an employee who had a legal change of name, or reverifying employment authorization.
Employers must retain an employee’s completed Form I-9 for as long as the individual works for the employer. Upon termination of employment, the employer must retain the employee’s Form I-9 for either three years after the date of hire or one year after the date employment is terminated, whichever is later.
New Form I-9
On August 1, 2023, a new Form I-9 was released. Employers may continue to use the older Form I-9 through October 31, 2023. After that date, anyone using the older Form I-9 will be subject to penalties.
The following updates were made to the Form I-9:
- Sections 1 and 2 were reduced to a single-sided sheet.
- Section 1 Preparer/Translator Certification was moved to a separate, standalone supplement (Supplement A) that employers can provide to employees when necessary. Employers may attach additional supplement sheets as needed.
- Section 3 Reverification and Rehire was moved to a separate, standalone supplement (Supplement B) that employers can print if or when rehire occurs or reverification is required. Employers may attach additional supplement sheets as necessary.
- Use of “alien authorized to work” in Section 1 was removed and replaced with “noncitizen authorized to work” and the difference between “noncitizen national” and “noncitizen authorized to work” was clarified.
- Confirmation that the form can be filled out on tablets and mobile devices.
- Certain features were removed to ensure the form can be downloaded easily thereby eliminating the requirement to enter N/A in certain fields.
- The notice at the top of the form that explains how to avoid discrimination in the Form I-9 process was updated.
- The Lists of Acceptable Documents page was revised to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation. A box was added that eligible employers must check if the employee’s Form I-9 documentation was examined under a DHS-authorized alternative procedure rather than via physical examination.
End of COVID-19 Flexibilities
On March 20, 2020, the Department of Homeland Security (DHS) temporarily suspended the in-person physical document inspection requirements for Sections 2 and 3 of Form I-9 as a result of the COVID-19 pandemic. As of that date, employers were given the flexibility to review documents remotely to complete the form. That flexibility, however, ended July 31, 2023, and employers are now required to verify that all Form I-9s, whose Section 2 or 3 had been initially completed remotely, are updated with a physical, in-person examination of documents no later than August 30, 2023.
If the person who virtually examined the documents is not the one who performs the physical inspection, the DHS advised that the employer representative conducting the physical inspection complete a new Section 2 of the Form I-9 and attach that to the completed remote inspection Form I-9. It is also recommended that the “Additional Information” field in Section 2 include the date by which remote verification was completed. Once the physical document inspection is complete, Section 2 should also be updated with the following annotations: “COVID-19” and “Documents physically examined on [date] by [initials].”
E-Verify is an Internet-based system operated by the DHS in partnership with the Social Security Administration (SSA). E-Verify allows participating employers to electronically verify the employment eligibility of their newly hired employees. E-Verify works by comparing the employee’s information to records available to DHS and the SSA to determine the employee’s authorization to work in the United States.
Qualified E‑Verify employers in good standing are the only employers permitted to remotely examine Form I-9 documents starting August 1, 2023. In order to be deemed a qualified E-Verify employer, the employer must have been enrolled in E-Verify at the time of hire, created an E-Verify case for that employee, and performed the remote inspection between March 20, 2020, and July 31, 2023. All other employers must complete an in-person, physical review of the employee’s documents to update Sections 2 or 3 of the I-9.
While DHS is exploring the creation of a framework under which a broader set of employers may implement alternative document examination procedures, such as remote document examination, no such framework has been created to date and only qualified E-Verified employers in good standing are presently permitted to remotely examine Form I-9 documents.
Civil and criminal fines and penalties may be imposed for employment of undocumented workers. The amount of any penalty is based on the size of the business (revenue, payroll and number of employees), the good faith of the employer, the seriousness of the violation, whether the employee was unauthorized and the history of the company with regard to previous violations. An employer that is found to have engaged in a pattern or practice of knowingly hiring undocumented immigrants (or that continues to employ people in the country illegally despite knowing they are not authorized to work in the United States) may be subject to fines, six months’ imprisonment or both.
Employers who have not already conducted a physical, in-person examination of documents for those employees whose Form I-9 documents were initially verified remotely, should act immediately to ensure compliance with the August 30th deadline. Additionally, employers should familiarize themselves with the new Form I-9 prior to formally converting to same in advance of the October 31st deadline. Please contact our office with any questions concerning this process.