Mixed I-9 News from USICE…

…But at least we finally got a new #I-9 form, which isn’t quite as horrible to use!

Following up on our I-9 #compliance post earlier this year, we have some more positive news to report from the USICE agency. Yesterday, they formally published new regulations/rules creating a somewhat limited option for employers to do virtual inspection of documents for I-9s, starting on August 1st. We won’t bore you with all the details of the nearly 50 pages published in the Federal Register. Suffice it to say that many employers across the U.S. will be breathing a huge sigh of relief next month.

The new rules allow for an employer to avoid the historical, in-person, I-9 document inspection requirements, if they:

  1. Are an E-Verify system employer, in good standing, and using E-Verify at the specific worksite where they will do virtual I-9 document inspections.
  2. Collect clear scans of the employee’s I-9 documents in advance, and the conduct a “live video interaction” with the employee, where they examine both sides of the documents the employee brings with them, reasonably ensuring that the scans received earlier are the same. Note that the video inspection must be done within 72 hours of the first day of work, or at any time after an offer is accepted, as usual.
  3. Check-off a new box on the I-9 form, confirming that the “alternative procedures” were used for that I-9.
  4. Retain the document scans with the I-9 for the entire I-9 retention period.
  5. Consistently use the new option across their entire employee population at the E-Verify worksite. If you want to avoid the wrath of the government’s anti-discrimination lawyers, do not use the virtual option for all of your U.S. citizen workers, but make your non-citizens show up in-person.

In addition to the new virtual document inspection option, USCIS also finally updated its I-9 form in several ways that we and most other U.S. employers have been requesting for years.

  • Sections 1 and 2 are back on one, single page at last!
  • The translator “certification” questions (rarely used by most employers) were moved to an optional Supplement A, page 3.
  • Section 3, for rehires and re-verification of work authorization expirations, was similarly moved to an optional Supplement B, page 4. And, there’s now more space for multiple re-verifications for the same employee, without having to use new I-9s and keep them all together.
  • The list of acceptable identity and work authorization documents is back on a single, page 2, and the lists were updated to reflect changes in the law. This should reduce the need to annotate so many notes in the Additional Information box.
  • The new checkbox for virtual document inspections was added to page 1 (hooray!!).
  • And, in what feels just a bit tongue-in-cheek, the form instructions were reduced from 15 pages to 8 pages. Presumably, the other 1/2 of the instructions were simply unnecessary(?).

Finally, keep in mind that these new rules did not entirely eliminate the requirement to “fix” all of your I-9s which were done under the COVID flexibility system. And, USCIS is still standing firm on their deadline to get those I-9s updated and corrected on or before the end of August. That’s especially true for employers who don’t participate in E-Verify, as well as employers who only use E-Verify for some, but not all, of their worksites.

As always, if you have any questions or concerns about these Form I-9 changes, don’t hesitate to reach out to your AMS Global Immigration attorney. We are your U.S. Immigration Business Partners, and we’re here to help!