New I-9 Form, New Process


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Well it’s 2023, so seems like a good time for a big update to the I-9 Authorization to Work in the US form – right?  Well, not really – but it doesn’t really matter because it’s happening.  Yep, the Feds just released the new Form I-9 on August 1st.  But before you break out in a cold sweat – because it is already after August 1st, don’t worry.   You’ve got plenty of time to transition because you can keep using the old one until October 31, 2023.  But, even with the extended deadline, it’s important that you get on board as soon as possible – because there is a lot to do.

Now just like in the past, the updated form still has two parts: Section 1 for your employees to complete and Section 2 for you, the employer, to fill out.  Section 2, your section, has to be completed no later than 3 days after the person starts; so be sure to calendar that deadline for all your new hires.  Oh, and don’t forget to make sure to keep all the I-9s and their supporting documentation in a file separate from the personnel files.  They can’t be mixed in with the other personnel documents.

You may remember (or actually may or may not know) that back during the pandemic, temporary accommodations were put in place around how you process the I-9 form.  Basically the rule had always been, you look at the supporting documents (sometimes a driver’s license or passport or something similar) – anyway you would look at the physical documents, complete the form, make a copy of the documents and file the copies with the form.  Now the call out here is that you had to look at the physical documents, because when you sign your name on the I-9 form you are saying, under penalty of perjury, that you personally saw the docs.

But during the pandemic, a lot, and I do mean a LOT of people started working remotely.  So many in fact that companies were hiring people remotely that they had never met in person.  So that made the I-9 document inspection thing really difficult – actually it was impossible.  But to everyone’s surprise, the Feds gave everyone a break. They rolled out new guidelines allowing employers to temporarily use electronically or remotely reviewed docs.  So things like pdf’s and photos became the norm.  But, I think we all kind of mentally left out the word ‘temporarily’ when we where thinking through this process.  But finally, with the ending of the pandemic emergency period, so ends the remote verification option.

…The Feds are requiring you to go back, look at the physical documents of all those new hires, and reverify using the I-9 form.

That means you have to start looking at the real, physical documents again.  But (and here’s the fun part) – those documents that you remotely viewed during the pandemic – well now you have to go back and reverify them by looking at the physical documents.  Yes, I know it feels like a bit of cold water in the face, but it’s true.  The Feds are requiring you to go back, look at the physical documents of all those new hires, and reverify using the I-9 form.  And the kicker is, it has to be done no later than August 30, 2023.  Yep, the end of this month.

Now there are some options – you can use an authorized representative to help with in-person verifications for those remote employees (just be careful who you pick because they’re representing the company, and will have access to private information).  And the Feds have also given us guidance for various scenarios, things like the employee doesn’t work for you anymore, or they provide different documents this time around, or the documents they used are now expired.

And – there is another alternative.  You can opt to start using E-verity.  E-verify is an online database, managed by the government, that companies can use to verify employment eligibility.  You, as an employer, can sign up for E-verify and then use it to verify all your new hires.  Now before you speed over to the website, make sure you check with your state or labor attorney first.  Some states require E-verify, some only require it for public employees and some make it voluntary.  So you need to know the details of your state’s rules before you sign up.

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But, if you do elect to go the E-verify route, then you’ll be able to continue to remotely verify documents for the I-9 form.  Oh, there are a couple of hoops you’ll have to jump through – you’ll have to have a video interview with the candidate while you watch them as they compete section 1 of the form and uploads or sends it to you.  Then, again during a live video chat or call the employee holds up their verification documents (the originals) and you inspect them – and yes, at this point I’m using air quotes around ‘inspect’.  Then you check the appropriate box on the I-9 form, and you keep copies of the form and documents in the file (electronic or hard copy).

Now, I know this sounds like a lot – but the main takeaways here are 1) get the new I-9 form and start using it as soon as possible and 2) get on top of those reverifications immediately, since they’re due no later than August 30, 2023.

Also, to help you along, I’ve put together an I-9 Workflow that will walk you through the process of using the new form and doing the video verification.

So, get ready for your close-up.  Video, in all aspects of our businesses, is here to stay.  Go ahead, hop on Amazon, grab some good but inexpensive cameras, get your lighting together, make sure your internet connection is top notch and Zoom in (see what I did there?).  Listen, I’m sure holograms will be the next thing on the horizon.

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