Regulatory Update: I-9 Changes Coming Aug. 1, 2023

By Chris Babigan

The long-awaited I-9 changes are finally here. There’s a lot to unpack, but we’ve got you covered. 

On July 21, 2023, the U.S. Department of Homeland Security released details of two major, I-9 changes impacting all employers across the country. First, DHS announced permanent rules for remotely inspecting employee I-9 documents. Second, it announced the release of a new version of the I-9 starting Aug. 1, 2023.  

The last form expired Oct. 31, 2022, but employers were instructed to continue using the new form until this new iteration was ready. To ensure compliance, PrismHR is committed to delivering timely and accurate system updates to support these new requirements. 

New Version Requirements & Modifications 

Employers may begin using the new format upon release on Aug. 1, and must convert to using the new format by Nov. 1, 2023.   

Based on the U.S. Citizenship and Immigration Services (USCIS) description, the new version will almost uniformly align with the most recent draft published by DHS on June 22, 2023, with: 

  1. Section 1 and 2 consolidated on a single page. 
  2. The Preparer/Translator and Reverification/Rehire sections moving from main body of the I-9 to Supplement A and B forms. 
  3. Instructions reduced from 15 to eight pages. 
  4. Select data fields, including those for employer address, will be consolidated into a singular field. 
  5. Verbiage modifications that include employee attestation and adoption of the term “noncitizen” in place of “alien.” 

DHS also removed the requirement that employees complete every field in Section 1 by inserting “N/A” into those that are not applicable. Now employees are permitted to leave fields, like their middle initial and email address, blank if they do not apply. 

One modification described in the USCIS notice that is not on the draft format is the addition of a check box for “alternate document examination” for employers conducting remote verification. This aligns with DHS’s new procedure for remote verification, which was released concurrently with these I-9 form updates and detailed below. 

New Remote Verification Option 

The DHS has long required employers to physically inspect original copies of employee I-9 Section 2 documents in person. Specifically, DHS I-9 regulations under 8 CFR 274a.2 mandated that employers: 

Physically examine the documentation presented by the individual establishing identity and employment authorization. 

The USCIS Form I-9 instructions doubled down on this language, stating that employers: 

[M]ust physically examine, in the employee’s physical presence, the unexpired document(s).

However, on March 20, 2020, DHS began permitting some temporary remote inspection because of the COVID-19 pandemic with the caveat that employers would still need to review all employee documents in person at some later date. This COVID-19 Temporary Flexibility was subsequently set to end on July 31, 2023, with all in-person inspection required to be completed by Aug. 30, 2023. 

Regulatory Changes Permitting Remote Inspection 

In August 2022, amid the backdrop of a growing U.S. remote workforce and the eventual end of COVID-19 flexibility, DHS proposed modifying the regulations to allow the DHS secretary to independently create permanent alternative methods of document inspection.   

These changes were finalized and published in the Federal Register on July 25, 2023. And, as of Aug. 1, 2023, 8 CFR 274a.2 will now read: 

physically examine (or otherwise examine pursuant to an alternative procedure authorized by the secretary) the documentation presented by the individual establishing identity and employment authorization.  

Concurrently with this update, DHS established and published an “alternative procedure,” dubbed the “Optional Alternative 1 to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9).”   

Remote Procedures 

Beginning Aug. 1, 2023, employers can now satisfy the document inspection standard, without in-person physical examination, via a step-by-step process whereby: 

  1. Employee “transmits” front and back copies of their Section 2 documents to their employer. 
  2. Employer reviews said documents.
  3. Employer and employee hold a “video interaction,” where the employee presents these documents again to the employer on camera.
  4. Employer flags a new box on Section 2 of the new I-9 format indicating usage of the alternative procedure for document verification.
  5. Clear and legible copies of all the employee documents are preserved with the I-9.
  6. Employer opens an E-verify case for final employee validation.

Employer Limitations 

The alternative procedure rules limit when employers can and cannot leverage this process.  Specifically, employers: 

  1. Must be enrolled and in good standing with E-Verify (a “qualified employer”). 
  2. Must open this procedure to all employees at E-Verfiy hiring sites, or establish nondiscriminatory rules that limit its application to all remote and hybrid employees. 
  3. Cannot mandate remote verification, as employees who are unable or unwilling to follow the step-by-step process may opt for in person verification.

Interaction With Expiring COVID-19 Flexibility 

By Aug. 30, 2023, employers must properly inspect employee I-9 documents that were previously only remotely inspected under COVID-19 Temporary Flexibility Rules. Prior to Aug. 1, 2023, this meant physical in-person inspection. 

However, qualified employers may now also use a slightly modified version of the new alternative procedure to satisfy this requirement— if and only if the employer originally opened an E-Verify case for the employee at the time of remote inspection. Instead of checking a box on a new I-9, the employer must update the existing employee I-9 by annotating that the “alternative process” was used and the date of the video interaction was added in the “Additional Information” field. 

Chris Babigian is PrismHR’s compliance strategy manager. A graduate of Boston University School of Law with a focus in taxation, Chris spent five years handling motions, appellate briefs and trial discovery for a civil litigation firm. In 2014, Chris transitioned to PrismHR, where he translates regulatory requirements into software solutions.