Employee Benefits

2023 I-9 update: end of temporary COVID-19 flexibilities and a new Form I-9

On May 5, 2023, the DHS announced a reminder of the end of temporary COVID-19 flexibilities for Form I-9. This announcement confirmed the temporary flexibilities ending on July 31, 2023 – providing employers through August 30, 2023 to complete in-person physical document inspections for employees whose documents were inspected remotely during the temporary flexibility period (March 20, 2020 to July 31, 2023).

Employers may choose to designate an authorized representative to complete Form I-9s. Therefore, employers or their authorized representatives must physically examine each original document from the employee to determine that the documentation reasonably appears to be genuine and related to the person presenting it (unless the employer is eligible for the “alternative procedure” for document examination). Recently, the DHS published an accompanying document describing and authorizing employers enrolled in E-Verify the option to remotely examine their employees’ identity and employment authorization documents under an authorized alternative procedure.

Employers qualified to use the alternative procedure

The alternative procedure is available only to qualified employers, meaning those employers who are current participants in good standing, in E-Verify. Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020 to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023 to satisfy the physical document examination requirement by August 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by the August deadline.

If a qualified employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site. However, a qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin.

Qualified employers who use an alternative procedure with an employee must retain a clear and legible copy of all documents presented by the employee seeking to establish identity and employment eligibility for the Form I–9.

What does the alternative procedure entail? Within three business days of an employee's first day of employment, a qualified employer (or an authorized representative acting on such an employer's behalf, such as a third-party vendor) who chooses to use the alternative procedure must:

  1. Examine copies (front and back, if the document is two-sided) of Form I–9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine; and

  2. Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must first transmit a copy of the document(s) to the employer (per Step 1 above) and then present the same document(s) during the live video interaction; and

  3. Indicate on the Form I–9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable; and

  4. Retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back if the documentation is two-sided); and

  5. In the event of a Form I–9 audit or investigation by a relevant federal government official, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.

Using authorized representatives

An authorized representative can be any person the employer designates, hires, or contracts with to complete, update, or make corrections to Form I-9 Section 2 (or 3) on their behalf.  

An authorized representative can be any member of the general public (see exception regarding employees below), personnel officer, foreman, agent, or notary public where permissible (note, some states, like California, do not permit notaries to act as an authorized representative for Form I-9 purposes).

The authorized representative must perform all the employer’s duties, including reviewing the employee’s completed Section 1, either physically or remotely. Employers are liable for any violations in connection with the form or the verification process, including any violations committed by the designated authorized representative.

Employees cannot act as authorized representatives for their own Form I-9. Therefore, employees cannot complete, update, or make corrections to Section 2 (or 3) for themselves or attest to the authenticity of the documentation they present.  

Third-party vendors and solutions[1].  If seeking a vendor solution, such as a Form I-9 module within your current payroll system/HRIS, or a third-party authorized representative such as Verify I-9, or an electronic software solution such as I-9 Anywhere or Clear I-9, ensure their processes are aligned with the verification process required by law.

New Form I-9 – effective August 1, 2023

The new version of Form I‑9, Employment Eligibility Verification (PDF, 483.6 KB) is now available for use. This version contains changes to the form and instructions, including shortening the Form I‑9 to one page and reducing the instructions to eight pages.

Employers may begin using the new Form I‑9 on August 1, 2023. The Form I‑9 dated "10/19/2019” may continue to be used through October 31, 2023.  A summary of changes (PDF, 185.1 KB) to the Form I‑9 and instructions is available online.

Next steps

  • Review the “Q&A” posted on the USCIS website concerning the end of the COVID-19 flexibilities.

  • Determine your process to physically inspect documents that were remotely inspected on or after March 20, 2020 by the August 30, 2023 deadline (or, if eligible, complete the alternative procedure by deadline).

  • After physically inspecting documents, notate inspection/correction following the DHS recommendations.

  • If not currently enrolled in E-Verify, determine if enrolling in E-Verify and receiving the required training is right for your organization. After becoming a participant in good standing, you may be eligible to use the alternative procedure for future new hires.

  • Begin using the new Form I-9 as of August 1, 2023, or start the process to phase out the old Form through October 31, 2023.

  • Contact your Newfront HR Consultant or current payroll provider if you have any questions.

[1] Newfront is not affiliated with any vendors identified within this publication. We recognize there are many solutions available and recommend each employer research the right one for their business need.

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Marina Galatro
The Author
Marina Galatro

Executive HR Consultant

Marina brings more than 25 years of HR experience to her role as Executive HR Consultant at Newfront, and has provided consultation, effective recommendations and support to companies on a variety of topics such as compensation, compliance, leaves of absence, paid time off, performance management, policy and procedure development, total rewards, and training and development.

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