As we near the end of the year, we wanted to talk about the recent changes to employee eligibility verification Form I-9, give you an update on the virtual document inspection process, and offer helpful tips to keep your HR and recruitment practice humming. 

Attention! Attention! There’s a New Form I-9, and You Should Be Using It 

That’s right!  As of November 1, 2023 you should be using the new Form I-9 (Edition 08/01/23). While this new form looks a bit different from the previous Form I-9, the information that employers and employees need to enter is relatively the same. More on that later. First, let’s talk about who is eligible to work in the United States. 

Form I-9, the Spanish version 

Unless you’ve used it in the past, you may not have known that there’s a Spanish version of Form I-9. Having said that, it’s important that employers in the mainland United States are not allowed to use the Spanish version. Instead, you must use the English version of the form.  

That’s right! Even if you have non-English speakers on your workforce, unless those employees work in Puerto Rico, you are not allowed to use Spanish version of Form I-9.  

Who is Eligible to Work in the United States? 

All United States’ citizens as well as non-citizen nationals of the United States who are considered lawful permanent residents (LPRs), are eligible to work in the United States. And that’s where USCIS Form I-9 comes in. 

Verifying Employment Eligibility Using Form I-9 

For each employee, employers need to complete a new Form I-9 form. An individual is considered an employee of a company as long as the individual remains on the company’s payroll. In certain cases, an employer may delegate authority to complete a Form I-9 to someone other than the employer. If that’s the case, it’s important to note that the employer will still be the one to retain any liability for any errors on the form. 

Completing a Form I-9 is also a way for the U.S. government to prevent employers from discriminating against individuals on the basis of actual or perceived national origin, citizenship or immigration status.  

Certain Workers May Not Qualify as Employees, Hence No Form I-9 Needed 

Certain individuals may not qualify as employees of a company, which means the employer is not required to complete Form I-9. These individuals are typically vendors who would be paid as a 1099. 

Employers do not need to complete Form I-9 for: 

• Domestic Service Employees who work in a private household when work is sporadic or intermittent. For example, if an in dividual comes in to clean your house, they would not be considered your employee. 

• Independent Contractors. These are individuals whose work hours you do not set, nor do you give them the tools/equipment to do their jobs.   
• Individuals you hire who work outside of the United States. If you are a company that has both U.S. employees and employees who work outside of the United States, you are not required to complete Form I-9 for those individuals who do not work in the United States.  

Mergers and Acquisitions 

What happens to employees when there’s a merger or acquisition? When companies merge with one another, are acquired, or do the acquiring, an employer can choose to do the following: 

• treat acquired workers as newly hired employees, and then complete a new Form I-9 for each acquired worker; or  
• consider the acquired workers to be employees continuing in their employment, and retain their previously filed Form I-9s.This also means the employer will be taking on the liabilities for any mistakes in previous Form I-9s. 

Employee Responsibilities: Section 1 of Form I-9 

While employers need to complete a Form I-9 for each employee, employees still must provide input.  

Section 1 of Form 1-9 must be completed by the employee no later than the first day of employment, but not before accepting a job offer. An employee must provide basic information, including: 

• Legal name and other names used if applicable, such as a maiden name, or another name by which they were previously known. 
• Current address 
• Date of birth 
• Social security number 
• Declare their status, i.e., a U.S. citizen, a non-citizen national of the U.S., a lawful permanent resident, or non-citizen authorized to work in the U.S. plus the expiration date of their employment authorization 
• USCIS A-Number, or Form I-94 Admission Number, or Foreign Passport Number and Country of Issuance 
• Employee signature attesting their citizenship or immigration status, and date. 

Note: It’s extremely important that the employee sign and dates the form. The employee signature and date are two things that auditors will always check to make sure the form is completed by the first day of employment. 

Employer Responsibilities: Section 2 of Form I-9, Employer Review and Verification 

It’s vital to examine and verify the information provided by the employee so that you’re able to legally attest to the employee’s legal status to work in the United States. You must: 

• Ensure the documents presented to you by the employee are on the list of acceptable documents. 

• Physically examine each document to ensure it appears genuine. If it doesn’t appear genuine, request another document on the list. 
• Photocopies of documents are not acceptable. You must see original documents. (However, after you have verified the original documents from the employee, you may make photocopies for your records.) 
• Once you have examined the documents on the list and verified them as genuine, it’s important to indicate the employee’s first day of work—before you sign and date the form. 

In addition, when an employer reviews Section 1 of Form I-9, they should be on the lookout for expiring employment authorization. If an employee notes that their employment will be expiring, you need to verify and re-verify the date that employment authorization expires.  

Helpful hint. Set a reminder for yourself approximately 90 days before the employment authorization expiration date. At that time, have a conversation with the employee to let them know that they will need to prepare updated documents to re-verify their Form I-9 before the 90 days are up. 

Companies with Multiple Locations: Determining an Employee’s Business Address 

For those companies with multiple locations, you may be wondering what business address to use for a particular employee. No worries! Choose the address that most closely identifies the location of the employer with respect to the employee. For example, if the employee works remotely but reports to an office in New York, use the New York office location as the appropriate business address of the employer. 

And now, let’s look at some new changes to Form I-9. 

New Supplement A, Preparer and/or Translator Certification 

Supplement A is the new “Preparer and/or Translator Certification” for Section 1. This information was on the previous version of Form I-9, but is presented in a new format.  

Supplement A may not be relevant for all employers. It’s for those companies that have employees who need help completing Form I-9 because English is not their first language. Consequently, a preparer or translator that helped the employee prepare the form must complete this information. 

New Supplement B, Reverification and Rehire 

There’s also a new Supplement B Reverification and Rehire for Form I-9. This new supplement replaces Section 3 on the previous version of Form I-9. Depending on your workforce and your demographics, you may not have had experience with this process in the past. 

Who Should Complete Supplement B? 

Employers should complete Supplement B if: 

• an employee requires reverification; 
• is rehired within three years of the date the original Form I-9 was completed; or 
• provides proof of a legal name change, e.g., marriage, adoption, etc.  

Employers can now use Supplement B to reverify a former employee who will be working in the United States, rather than having the former employee fill out a new Form I-9.  

Note: If it has been more than three years since a former employee worked for the employer, the employer and employee must complete a new Form I-9. 

Reviewing Previous Employee Documents During the Reverification Process 

Employers need to verify that these former employees are still legally authorized to work in the United States, so as not be a liability when it comes to work authorization. 

That said, it’s critical that all documents previously submitted for initial verification are still valid. Documents could include passports, driver’s licenses, etc. If a document is still valid and there’s no change to the work authorization (as noted on their original Form I-9), you can use the information from the previous document. But if a document has expired, then it’s essential to verify the new version. 

The New Virtual Employee Verification Alternative for Form I-9  

The Dept. of Homeland Security recently announced a virtual alternative for employee verification for certain employers that are enrolled in E-Verify. 

This virtual document examination alternative is not entirely new. It was originally available to certain employers during COVID-19, giving them the ability to virtually inspect documents for the purposes of completing Form I-9. While this was a quick and efficient means of verification, this original option was discontinued at the end of July 2023.  

Employers who took advantage of the option during COVID-19 are still required to undertake a physical verification of those documents by the end of August 2023. That means if you used the virtual option during COVID-19, you must still physically inspect those documents to remain in compliance. 

But wait! There’s more! As of August 1, 2023, employers enrolled in E-Verify may be qualified to remotely examine employees’ Form I9 documents. To learn more about this new option, see the recent Federal Register notice. But, before you decide to virtually verify employee documents, determine if this virtual alternative makes sense for your company and aligns with its best interests and strategies.  

Be Consistent When Using the Virtual Employee Verification Option 

If you have decided to virtually verify employee documents, then we suggest being consistent with the segments you have targeted for virtual verification verify documents. Perhaps you have chosen to virtually verify documents from all employees, or all remote employees. But if you have chosen not to virtually verify documents from lawful permanent residents, the government may construe that you are engaging in discriminatory practices on the basis of actual or perceived national origin, citizenship or immigration status.  

With all of these changes happening, it’s easy to feel overwhelmed. But before that happens, please contact us with any questions or concerns.  

The Takeaway 

• While the new Form I-9 has a somewhat different look, it’s still one of the most important documents an employer and employee must complete to meet federal regulations and maintain compliance. 
• The new virtual document examination option is now available for qualified companies enrolled in E-Verify. It will enable companies to consolidate and simplify their document verification processes. 
• Let common sense rule. When in doubt, reach out to trusted resources to help understand and navigate new and modified regulations, forms and processes.  

There’s a great deal more to be said and we’ll continue to bring you essential information, valuable insights, and actionable steps you can take to understand new processes, regulations, forms, and information to help you maintain compliance and enhance your recruitment strategies. 

Questions? Comments? Contact us today!  

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