Form I-9 updates: new form, updated guidance, proposed pilot program

U.S. Citizenship and Immigration Services has published a new Form I-9 that will become mandatory Nov. 1.

The agency also provided updated guidance for employers that relied on temporary Form I-9 flexible measures during the COVID-19 pandemic, and U.S. Immigration and Customs Enforcement announced it is considering a remote verification pilot program for employers who are not enrolled in E-Verify.

Key Points:

• New Form I-9: On Tuesday, USCIS published a streamlined version of the Form I-9. Employers may begin using the new edition (dated “08/01/2023”) immediately, but are not required to until Nov. 1, 2023. A summary of the changes on the new form is available here. The form itself is available here.
• Updated guidance: USCIS confirmed that E-Verify employers that checked Form I-9 identity and work authorization documents remotely under temporary COVID-19 flexibilities “must still complete the steps of the new alternative procedure to finalize the Form I-9” by Aug. 30 even if they followed a process similar to the alternative procedure.
  • The follow-up reviews can be completed under the alternate procedures if the employer (1) was enrolled in E-Verify at the time the employee was hired, (2) created an E-Verify case for the employee in question and (3) performed a remote Form I-9 document inspection for the employee under the temporary measures between March 20, 2020, and July 31, 2023. More information on these requirements is available on the E-Verify website.
  • USCIS guidance on notating Form I-9 when completing reviews due Aug. 30 is available here.
• ICE pilot program: ICE posted a notice Wednesday indicating it would accept comments on a potential pilot program to allow non-E-Verify employers to complete Forms I-9 virtually. Currently, the alternative review option is only available to qualified employers that are in “good standing” in E-Verify. Information about the potential pilot program is available here.

‌BAL Analysis: Employers are encouraged to familiarize themselves with the new Form I-9 and should have plans in place to begin using the new version no later than Nov. 1. Employers are also reminded that they must complete follow-up Form I-9 document checks by Aug. 30 for employees whose I-9 documents were reviewed virtually during the pandemic. BAL will continue to follow the development of a possible pilot program for non-E-Verify employers and will provide updates as information becomes available.

This alert has been provided by BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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