DHS Issues New Form I-9 and Employment Eligibility Verification Instructions

On August 1, 2023, the U.S. Department of Homeland Security (DHS) and the U.S. Citizens and Immigration Services (USCIS) released a new version of the Form I-9, Employment Eligibility Verification, along with updated regulations for completing it. Employers must use Form I-9 to verify the identity and employment authorization of their employees. Failure to complete the Form I-9 properly can have significant consequences, including fines for violations.

All U.S. employers are required to complete a Form I-9 for every individual they hire for employment in the United States, including for U.S. citizens and noncitizens. As of November 1, 2023, Employees must use the new Form I-9 edition. The edition date is located on the lower left corner of the form. A revised Spanish Form I-9 dated 08/01/2023” is also available for use in Puerto Rico only. The new version contains improvements to the layout as well as the following significant changes:

  • Moved Section 3, Reverification and Rehire,” to a standalone Supplement B that employers can use as needed for rehire or reverification. This supplement provides four areas for current and subsequent reverifications. Employers may attach additional supplements as needed.
  • Removed use of alien authorized to work” in Section 1 and replaced it with noncitizen authorized to work,” and clarified the difference between noncitizen national” and noncitizen authorized to work.”
  • Ensured the form can be filled out on tablets and mobile devices by downloading it onto the device and opening it in the free Adobe Acrobat Reader app.
  • Improved guidance to the Lists of Acceptable Documents” to include some acceptable receipts, guidance, and links to information on automatic extensions of employment authorization documentation.
  • Added a checkbox for E-Verify employers to indicate when they have remotely examined Form I-9 documents.

DHS and USCIS also updated the Form I-9 instructions by including the addition of instructions for a new alternative procedure, which permits employers who participate in E-Verify in good standing to examine employee documents for employment authorization remotely. Employers must comply with several requirements in order to perform a remote examination, including conducting a live video interaction with the individual presenting the document.

Failure to comply with Form I-9 requirements can have severe consequences for employers, including civil and even criminal penalties. In recent years, U.S. Immigration and Customs Enforcement (ICE) has increased the number of investigations and enforcement actions taken against Form I-9 violators. Employers who fail to comply with Form I-9 requirements can be fined anywhere from $272 to $2,701 for each incorrect Form I-9. In 2022, the Office of the Chief Administrative Hearing Officer (“OCAHO”) issued one of the largest I-9 penalty decisions, ordering a staffing company with over 2,000 Form I-9 violations to pay penalties of $1,527,308. The amount of the fine depends upon the size and if the conduct was intentional, seriousness of the violation, individuals’ work authorization status, and the employer’s history of previous violations.

The new changes simplify and streamline the review process by reducing the length of the Form I-9 and permitting remote verification of documents. It is highly recommended that companies review Form I-9 training and procedures to ensure compliance with the latest I-9 verification rules. If you have any questions concerning Form I-9 compliance, please contact a member of Kelley Drye’s Labor and Employment Team.